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Judge Sutton on "The Three Faces of American Constitutional Law"

2026-09-12T13:53:34Z

This past Wednesday, Jeffrey Sutton, Chief Judge of the U.S. Court of Appeals for the Sixth Circuit, delivered the annual Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law on "The Three Faces of American Constitutional Law."

The lecture drew upon some of Judge Sutton's scholarship and writing on the significance of state constitutional law, and how that can influence federal constitutional law.

During his remarks, Judge Sutton also discussed the Supreme Court's most recent term, and its handling of challenges to Trump Administration policies. This portion of his remarks were covered by Bloomberg:

The US Supreme Court's record on cases involving Donald Trump shows the conservative supermajority isn't in lockstep with the Republican president, the Sixth Circuit's outgoing chief judge said. . . .

Sutton . . . called the court's last term "so remarkable" in the face of a president exercising a "fairly aggressive" amount of power.

He noted the administration lost several times at the court. . . .

It "makes me proud to be a lawyer and proud to be a judge," Sutton said, because he can "guarantee" the administration would've won the cases it lost if those matters were put to the Republican-controlled Congress.

"The insight is, well, whatever these Republican appointees are doing, you can't call it pure politics, because if it was pure politics, they would act just like the Republican Congress," the judge said.

"There's something judges are doing, even in this moment where we're skeptical of the Supreme Court, skeptical of federal judges, maybe state judges. They're still doing something that you have to call different from party and elected politics," Sutton added.

As longtime readers know, I was a member of the CWRU law faculty for twenty-five years and, during much of that time (2008-2025), I curated the Canary lecture series. It is good to see the tradition continues. Prior Canary lectures are indexed here.

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Can the Feds Ban You From Making Liquor in Your Own Home?

2026-09-12T11:00:41Z

John Ream is trying to do something that should be straightforward: distill his own alcohol. Since the Founding of our country, Americans have sought to distill spirits on their own property for personal consumption. Nearly every famous Founding Father—from George Washington to James Madison to Patrick Henry—distilled spirits on their land, and in modern times, activities like homebrewing have been legalized for decades.

For over a century and a half, however, home distilling has been illegal. The Supreme Court could soon step in.

The trouble dates back about a century and a half ago. In 1868, Congress made it a crime to use or possess a still or boiler for the purpose of distilling spirits "in any dwelling house, or in any shed, yard, or inclosure connected with such dwelling house." The purported reason for the ban was to facilitate collecting tax revenue from authorized commercial distillers. While hobby distillers have long criticized this federal distilling ban, it is now receiving renewed attention, particularly in terms of what it says about the federal government's power in America today.

In 2024, Ream, with the help of the Buckeye Institute, challenged the federal distilling prohibition. After all, if Congress can prohibit Ream from making a product for personal consumption within his own home, where would the federal government's power end?

In response, the federal government has advanced two main arguments to defend the ban: first, that the ban is authorized under Congress' Article I taxing power, and second, that it's permissible under the Interstate Commerce Clause, which allows Congress to regulate commerce "among the several states."

Under the government's theory, these two clauses—in conjunction with the Constitution's Necessary and Proper Clause, which permits Congress to enact all laws that are "necessary and proper" to carry into effect its enumerated powers—give it the authority to prohibit Ream from operating a small home still for the personal consumption of spirits.

Earlier this year, two federal circuit court decisions reached differing conclusions on the distilling ban. In the U.S. Court of Appeals for the 6th Circuit, Ream lost, with the court buying the federal government's claim that it can prohibit home distilling under the taxation power and the Necessary and Proper Clause. In a companion case in the 5th Circuit, however, the government's taxation theory was rejected.

Given that these two decisions have teed up a so-called "circuit split," it's widely expected that the high court could step in to make a final determination. But while the government's troubling taxation power argument in these cases has received ample coverage—including in these pages—relatively little has been written about the government's back-up defense centered on the Commerce Clause.

Neither lower court directly weighed in on the Commerce Clause. But the government's alternative defense is technically still alive on appeal and could be resolved by the Supreme Court. A decision on the issue could be the most important Commerce Clause holding since NFIB v. Sebelius (2012), in which the Court ruled that the individual mandate under the Affordable Care Act was not a valid exercise of congressional power under the Commerce Clause (though the Court ultimately upheld the mandate via different means). Americans interested in federalism should hope that the Supreme Court seizes the opportunity before it to reimpose limits on the federal government's interstate commerce power.

The heart of that debate can be traced back to the Court's notorious 1942 decision in Wickard v. Filburn, which held that a farmer named Roscoe Filburn could be prohibited from growing wheat for home consumption. The Court adopted what became known as the "aggregation principle," arguing that if, on aggregate, farmers like Filburn were allowed to grow wheat for their own consumption, this could have a substantial effect on interstate commerce (since those farmers would presumably be substituting their own wheat for purchases on the open market).

While Wickard stretched the Commerce Clause far beyond its original understanding, it at least dealt with production on a sizable farm. (Filburn grew 11.9 extra acres of wheat for home consumption).

The 2005 ruling in Gonzales v. Raich, however, expanded the Commerce Clause to the breaking point.

In Raich, the Supreme Court used the Commerce Clause to uphold the federal government's authority to criminalize the production of homegrown cannabis. According to the Court, Congress could regulate purely local activities that are part of an economic "class of activities" that have a "substantial effect on interstate commerce."

The problem with this analysis is that it substitutes the broader concept of "economic activity" for what the Constitution actually says—that Congress can regulate "commerce" among the several states. While Founding era usage of the term "commerce" distinguished it from the production or manufacture of a product, the Court labeled production and manufacture as "quintessentially economic" and therefore within the ambit of an elastic interpretation of the Commerce Clause.

This functionally rewrote the Constitution's text by deleting the word "commerce" and replacing it with "economics," a far broader term. If Ream distills his own liquor, the theory holds, then he may be less likely to buy liquor on the open market. And if more would-be home distillers follow his lead, then there could be a "substantial effect" on interstate commerce.

With that reading, it's hard to see where the federal government's power would end here. In an amicus brief before the Supreme Court, my Manhattan Institute colleagues Ilya Shapiro and Trevor Burrus point out that this same reasoning would theoretically reach "virtually every other household activity," giving the feds authority to regulate "all ordinary household life."

A homegrown herb garden, for instance, could result in its planter purchasing fewer herbs at the grocery store. A stay-at-home parent could prevent a family from hiring paid child care. A homeschooling family might forego potential tuition payments at a nearby private school. Taken to its logical conclusion, the Court's analysis could justify federal intrusion into each of these spheres of domestic life, thereby erasing any limits on the federal government's Commerce Clause power altogether.

Ream's case, in that vein, provides the current Court the chance to overturn Raich and clarify that Congress' Commerce Clause authority does have meaningful limits. (Of note, doing so would not require the Court to overturn older precedents, like Wickard).

The Supreme Court may likely hear Ream's case. It is less clear if it will weigh in on the Commerce Clause. Americans wishing for a limited government should hope that it does.

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Today in Supreme Court History: September 12, 1958

2026-09-12T11:00:36Z

9/12/1958: Cooper v. Aaron is decided.

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Trump Said He Would Rid the Kennedy Center of 'Woke.' He Injected His Own Politics Instead.

2026-09-12T10:00:19Z

When President Donald Trump announced a takeover of the John F. Kennedy Center for the Performing Arts last year, he claimed to be fighting a specific sort of cultural rot at the Washington, D.C., institution. "We don't need woke at the Kennedy Center," he said in February 2025. "So I'll be there until such time as it gets to be running right."

The president abandoned that in May 2026, after a federal judge ruled that the center was illegally renamed after Trump. Trump's remedy for a "woke" Kennedy Center was to replace one alleged strain of political capture with another.

The center operates in a gray zone between the public and private sectors. Taxpayers fund building maintenance, operations, security, and repairs. Private donors and ticket sales, meanwhile, are the main source of money for programming. Originally known as the National Cultural Center, the venue was renamed by Congress in 1964 to honor President John F. Kennedy after his assassination. Memorials to former presidents are not unprecedented. Yet naming an arts institution after a politician was itself a political act, as was using taxpayer money to create it in the first place.

Trump is a singular character. But he has provided an example, however cartoonish, of what can happen when you give the public sector control over something that is inherently a private endeavor. The vast majority of Americans will never set foot inside the "national cultural center." Why are they paying for it? And why does someone like Trump have any say over it?

The takeover was predictably disastrous. Ticket sales plummeted, artists canceled performances en masse, and donations reportedly declined. "It is our desire to perform in our home at the Kennedy Center," Washington National Opera artistic director Francesca Zambello, who said donor confidence had "shattered," told The Guardian last year. "But if we cannot raise enough money, or sell enough tickets in there, we have to consider other options." The company left the Kennedy Center soon after.

In August 2025, at the height of the takeover, Parade arrived at the Kennedy Center. The musical tells the story of Leo Frank, a man whom historians widely agree was wrongly convicted of murder. After his death sentence was commuted to life in prison, he was lynched by vigilantes.

Parade was relocated to the center's Eisenhower Theater from its opera house, which is more than twice the size, amid weak ticket sales. The show is a powerful exploration of antisemitism, media malpractice, racial dynamics in the South, and tribalism—the type of complicated story that is tailor-made to transcend partisan fractures. At Trump's Kennedy Center, it played to a sparsely filled house.

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Open Thread

2026-09-12T07:00:00Z

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Court Upholds $7.85M Verdict for Employees Fired for Refusing to Get COVID-19 Vaccine

2026-09-11T23:13:24Z

An excerpt from the long opinion today in Lewis-Williams v. S.F. Bay Area Rapid Transit Dist., decided by Judge Ryan Nelson, joined by Judges Johnnie Rawlinson and Bridget Bade:

San Francisco Bay Area Rapid Transit District seeks to overturn a jury verdict of $7,824,580 to six former employees for Title VII violations for failure to accommodate their sincere religious objections to a COVID-19 vaccine mandate. Because sufficient evidence supports the jury's verdict, we affirm….

Title VII requires employers to "reasonably accommodate" religious objectors' sincere requests for exemptions from neutral job requirements that conflict with the objectors' religion, unless the employer can show that the exemption would create "undue hardship." That's Congress's choice, made in 1972, and in my view there are good arguments against mandating such religious exemptions from neutral rules, but Congress did indeed so mandate. And here, the court held, the jury was entitled to reject the employer's undue hardship argument:

It is undisputed that the Six Former Employees carried their burden of showing a prima facie case that BART failed to accommodate their religious objections to the vaccination requirement. The propriety of [setting aside the verdict as inconsistent with the law] therefore turns on whether BART carried its burden of showing that Plaintiffs' religious objections could not be accommodated without undue hardship.

BART's argument … proceeds in two steps. First, BART argues that unrebutted testimony established that (1) public health guidance at the time advised that vaccination was the most effective measure for preventing the spread of COVID-19, (2) BART relied on this guidance in determining that it would be unacceptable from a safety and operational standpoint for unvaccinated employees to perform in-person work, and (3) its reliance on such guidance is dispositive for purposes of the undue-hardship determination because a religious accommodation that imposes an increased safety risk for others constitutes an undue hardship as a matter of law. Second, BART argues that remote work and unpaid leave—the only accommodations as safe as vaccination—were not reasonable accommodations as a matter of law because the only rational conclusion based on the evidence introduced at trial was that Plaintiffs could not perform the essential duties of their jobs remotely and any unpaid leave would have been indefinite….

[W]e conclude that BART is not entitled to [set aside the verdict]. To prevail on its "undue hardship" defense, BART had to show that the alternatives to vaccination would be not only less safe, but less safe by a "substantial," "excessive," or "unjustifiable" margin….

BART argues that any increase in safety risk resulting from an accommodation is an undue hardship. This argument conflicts with the Supreme Court's holding in Groff that an accommodation does not impose an "undue hardship" unless the burdens would be "substantial," "excessive," or "unjustifiable." Common sense dictates that safety risks, like any other category of risk, are capable of justification…. "Because few, if any, activities in life are risk free, [we] do not ask whether a risk exists, but whether it is significant." … Accordingly, an employer is not absolved of its burden of proving that an accommodation is unreasonable by merely showing that the accommodation has safety implications. Rather, employers are ordinarily entitled to rely on the views of public health authorities, along with the best "objective, scientific information available" at the time, when making accommodation decisions.

That brings us to the next problem with BART's argument: the public health guidance that BART relied on is not in the record. BART likewise did not call any of the infectious disease experts or public health officials with whom BART's pandemic task force consulted when formulating its vaccination policy. Instead, BART put forward the testimony of two after-the-fact litigation experts—Dr. Joseph Lewnard, an infectious disease epidemiologist, and Dr. Nancy McClellan, an industrial hygienist—to establish the state of the public health guidance and the risks BART would be taking by allowing unvaccinated employees to work in person.

Contrary to BART's contentions, the jury was not required to accept BART's expert, non-percipient witness testimony as conclusive evidence of the scientific information that drove BART's decision-making. Moreover, "[e]xpert testimony … is not conclusive upon the trier of fact, even though unimpeached and uncontradicted, since the trier may apply his own experience or knowledge in determining how far to follow the expressed opinion." The expert testimony thus did not establish that in-person alternatives to BART's vaccine requirement—masking, social distancing, and other such measures—would be unreasonable accommodations as a matter of law….

The above conclusion, however, is not necessarily fatal to BART's argument. Even if in-person alternatives to vaccination are not per se unreasonable accommodations in the context of BART's business, they may still impose an undue hardship considering either the nature of that business, the religious objector's work duties, or some other factor (or combination of factors).

Our decisions in Petersen and Williams are illustrative. In Petersen, eight firefighters sued their employer for denying them religious accommodations for a COVID-19 vaccine mandate. Because the fire department's business was to provide the public with "emergency, even life-saving, services" and undisputed evidence established that "firefighters work in group settings, interfacing constantly with coworkers and the public, both inside and outdoors" and that the plaintiffs often did not abide by masking and social distancing guidelines, we held that "testing, masking, and social distancing in lieu of vaccination" was not a reasonable accommodation in light of the substantial burdens that would be imposed on the fire department.

Defendants in Petersen also risked serious financial and operational hardships likely to be incurred had they accommodated the firefighters (including potentially losing almost a quarter of their firefighting force to illness and losing a $400,000 annual contract). {By contrast, BART had received millions of dollars in federal COVID-19 relief funds. The jury could reasonably infer that BART used those funds to ensure that it did not engage in mass layoffs during the pandemic. The employees who lost their jobs were the religious dissenters BART failed to accommodate. Thus, a reasonable jury could also have inferred that BART had the resources and excess workforce to accommodate the Six Former Employees without suffering an undue hardship.}

In Williams, nine healthcare professionals sued their employer, "a regional healthcare system that operates eight hospitals throughout the Willamette Valley," on the same basis—failure to provide accommodations for a COVID-19 vaccine mandate. And in holding that alternative measures to vaccination would impose an "undue hardship" on the conduct of the defendant's business, we highlighted that the defendant was in the "business of providing safe and effective medical care to the public," that unvaccinated "frontline [hospital] workers" such as the plaintiffs "faced a unique risk of infection," and that the nature of the plaintiffs' work duties "necessitated close contact with either patients or staff" and therefore created an outsized risk of causing staffing issues and undermining the efficacy of patient care.

Those factors are not present here. Unlike the defendants in Petersen and Williams, the focus of BART's business is not health and safety, but transportation. And unlike the plaintiffs in those cases, the roles occupied by the Six Former Employees before their termination did not require them to be in close, frequent contact with the public or most coworkers:

Tonya Lewis-Williams was a "utility worker," responsible for "clean[ing] up the debris off the platform, the trains, some offices," and other such places. Lewis-Williams testified that "[m]ost of the time" she was by herself and not in contact with passengers or her co-workers.

Bradford Mitchell was a "rolling stock component maintenance superintendent," responsible for supervising the maintenance of train cars at the Richmond shop. He testified that he had no contact with the public and minimal contact with other BART employees—any necessary in-person meetings with shop employees were conducted in "a large open bay area" with a 40-foot-high ceiling and floor space sufficient to fit eight train cars, and after the pandemic began, meetings took place "[v]ery seldom[ly]."

Rosalind Parker was a "customer service clerk," responsible for selling tickets, bike locker rentals, and company store items, among other things. In her job, she worked alongside four co-workers and interacted with the public from behind a bullet-proof window. Her job required no "direct contact" with customers—money, tickets, and other such items were collected through a slot, and communication with the customers occurred through a microphone. After the pandemic started, BART installed large polyglass partitions that separated her workspace from the other three clerks.

Szu-Cheng Sun was a "computer electronic technician," responsible for "install[ing], maintain[ing], and repair[ing] computer-related equipment." Sun testified that "90 percent of [his] work could be done alone or remotely," that he had "no interaction with patrons or riders at all," and that only in "rare instances" presenting "[s]afety concerns" would he have to work alongside a coworker.

Raymond Lockett was an "operations supervisor liaison," responsible for meeting and escorting contractors around BART facilities (as well as BART employees who needed access to a facility they did not ordinarily have access to) and ensuring that such individuals did not create any safety concerns or other liabilities for BART. Lockett testified that his work was "primarily outside" and generally at a safe distance from other individuals.

Ryan Rivera was a "[s]torekeeper," responsible for making requisitions and keeping inventory, among other duties. Rivera testified that, as a "senior lead," he was relieved of all "physical duties" associated with his position and could have worked alone in his isolated office, which had "its own ventilation system with windows and filters."

Nor does BART point to any trial evidence suggesting that the Six Former Employees would have been unable or unwilling to wear a mask or take other appropriate measures aimed at preventing transmission. Accordingly, the jury could have reasonably concluded that the burdens imposed by accommodating the Six Former Employees' religious objections would not have been substantial, excessive, or unjustifiable.

We are especially hesitant to upend a jury verdict that rests on an "undue hardship" determination. The "undue hardship" determination is a "fact-specific inquiry" that "takes into account all relevant factors in the case at hand." Fact-specific determinations are generally best suited for jury resolution. "The jury, after all, represents the conscience of the community."

Given these features of the "undue hardship" determination, only in cases—like Petersen and Williams—where the excessiveness of the burden imposed "is so obvious that reasonable minds could not differ" is this question "appropriately resolved as a matter of law." This is not one of those cases. And the jury resolved those factual disputes reasonably, rendering a verdict for the Six Former Employees….

Judge Ryan Nelson also had a separate concurrence generally discussing the Free Exercise Clause; you can see it here.

Gage S. Fender, Matthew McReynolds, and Kevin T. Snider (Pacific Justice Institute) and Susan J. Clouthier and Gage S. Fender (Clouthier Law PLLC) represent plaintiffs.

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Supreme Court Blocks Missouri's Messy, Trump-Backed Gerrymandering Fight

2026-09-11T21:00:33Z

On Thursday, the United States Supreme Court issued a ruling in Missouri's controversial redistricting battle, backing the Missouri Supreme Court's decision that the state could not use a congressional map drafted by the state's Republican Gov. Mike Kehoe last year.

The Supreme Court's decision, which blocked a federal court order, is a blow to President Donald Trump's gerrymandering push, which began last August when the president urged numerous red states across the country to modify their congressional district lines to favor Republicans in the midterm elections. Kehoe was happy to oblige, swiftly drawing up a new map that the Missouri Legislature approved during a special session in September 2025.

People Not Politicians, an anti-gerrymandering activist group, promptly challenged the new map, organizing a signature drive and petition. They collected over 300,000 signatures from across the state and deposited them with Missouri Secretary of State Denny Hoskins in December. Under Missouri's state constitution, the people "reserve power to approve or reject by referendum any act of the general assembly." So, once Hoskins' office had verified the signatures, implementation of the new map would be paused until a statewide vote in November could determine the gerrymander's fate.

People Not Politicians simultaneously sued the state, claiming the Legislature lacked authority to draw up new maps between census years and that the new map violated mandates for district compactness. The Supreme Court of Missouri disagreed, ruling in March and in May that the new map was valid.

With the group's lawsuits falling through, all hope for overturning the new map seemed to hinge on the referendum. However, months after the petition's deposition, Hoskins had still not certified all the signatures. The Missouri Independent reported in May that Hoskins "said he intends to use the entire time available" up to the mandated deadline—the day of the primary election—before he would recognize the referendum as valid.

As foretold, Hoskins waited until the literal final hour before the deadline to conclude that "the referendum itself is null and void by virtue of the fact that it is unconstitutional."

People Not Politicians sued again, challenging Hoskins' last-minute revelation about the referendum's constitutionality. But by then the August primary had already been conducted using the gerrymandered district lines.

After a swift appeals process, the Supreme Court of Missouri decided against Hoskins on September 3, writing (not without some obvious irritation) "the referendum petition was legal, sufficient, and timely, and the secretary incorrectly concluded otherwise." The old map, the court ruled, was to remain "in full force and effect for the November 2026 general election."

The next day, Missouri Attorney General Catherine Hanaway, acting on the behalf of Hoskins, appealed to the Supreme Court of the United States, asking for a stay on the Missouri Supreme Court's decision, a move that former Missouri Solicitor General Jim Layton called "unprecedented."

In his new appeal to the U.S. Supreme Court, Hoskins said that the state Supreme Court could not throw out the new map because a federal election had already been conducted using it and returning to the old map would confuse voters and violate federal law.

The U.S. Supreme Court denied Hoskins' request for a stay on Tuesday, effectively echoing the Missouri Supreme Court's decision. Just minutes after the Court's denial on Tuesday, Trump-appointed federal judge Stephen Clark issued a restraining order in a different lawsuit, which blocked Missouri from "using, publishing, distributing, or mandating the use of any congressional district map other than the [new] map for the November [election]."

Choosing the court order he agreed with, Hoskins contacted Missouri election officials Tuesday night endorsing the use of the new map. For this, Hoskins was summoned before the Missouri Supreme Court on Thursday to justify that his actions were not in contempt of the court's order.

Just minutes before the contempt hearing began in Missouri, the U.S. Supreme Court paused Clark's restraining order while litigation in the appeals court continued. The Missouri Supreme Court found that Hoskins' past behavior was in contempt of its order, but that his culpability would be purged if he stopped using the new map. Logistical challenges remain, but as of Thursday afternoon, Hoskins's office was "directing local election authorities to use the 2022 congressional map," The New York Times reports.

Missouri's gerrymander is not an isolated case, nor is it a one-sided issue. Over the past two years, nine states have drafted gerrymandered congressional maps. Eight of those states have Republican-controlled legislatures. The ninth is California, which, at the initiation of Democratic Gov. Gavin Newsom, approved a statewide gerrymander by referendum.

While Trump is responsible for much of these undertakings, "the broader trend [of gerrymandering] predates Trump, and coincides with a general decay of civic norms and customs and a heightening of politics as a venture in trying to crush the enemy," Walter Olson, a legal scholar at the Cato Institute, tells Reason.

This push "to crush the enemy" might reward power-hungry politicians hoping to benefit their party, but the losers in all of this are the voters, who have their voice diluted with each further gerrymander. Missouri's redistricting scheme may have been foiled this year, but eight other states will be using newly gerrymandered maps this November.

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This California Social Media Law is a Privacy and Free Speech 'Nightmare'

2026-09-11T20:39:40Z

California, a state once brimming with optimism for a free and open internet, is now leading the country in online safety regulation. On Thursday, California Democratic Gov. Gavin Newsom signed 13 bills into law "strengthening California's nation-leading protections for children online."

The laws will impose stricter regulations on AI chatbots, a moratorium on certain AI-enabled toys, and pricey penalties on social media companies that knowingly cause harm to children. One of the laws, Assembly Bill 1709, is a particularly "massive privacy and free speech nightmare," according to the Electronic Frontier Foundation (EFF). The law requires social media platforms to "implement reasonable measures to ensure that users under 16 years of age are not offered or provided any addictive feature on the covered platform." While these provisions intend to protect children, the EFF notes that the law's implementation may have the opposite effect, as it would compel tech companies to implement age-gating measures to determine user ages.

In a letter urging Newsom to veto the legislation, the EFF also warned that because the law "does not specify how verification should occur without requiring additional proof," it will "result in platforms using the most invasive forms of age verification, such as requiring government-issued ID uploads or biometric scanning." Companies that fail to comply would face civil penalties of up to $50,000 per affected minor for a knowing violation and up to $25,000 per minor for a negligent violation.

The law also creates an e-Safety Advisory Commission, an "expert body" that would research and enforce internet safety law. Although the law states that the commission only exists for administrative purposes, it also says the commission shall report "recommendations for legislative changes to enhance the protection of minors online" to the Legislature and governor each year. These "experts" are to possess special knowledge from a variety of fields, including online safety, public health academia, marginalized youth advocacy, child psychology, and K-12 education. Unsurprisingly, First Amendment advocates and lawyers are not included on this list, as their expertise would likely thwart the state's regulatory push.

Common Sense Media founder and CEO Jim Steyer told The New York Times that Newsom's newly signed laws "will set a standard for the whole nation."

Steyer will likely be proven right. State and federal lawmakers appear eager to adopt more restrictive online safety laws, as Americans from across the political spectrum say they want the government to shield young minds and eyeballs from alleged online harms. According to a recent Pew Research Center poll, a majority of Americans support banning social media for children under 16. Restricting internet freedom is only becoming more popular, even as the fallout from online safety legislation abroad should dissuade Americans from giving the state more power over the online world. As Reason's Elizabeth Nolan Brown has reported, the United Kingdom's Online Safety Act has effectively age-gated large swaths of the internet, "putting up roadblocks for people who want to read about world news, view classic art, listen to music on Spotify, chat with friends on Discord, play video games, find information about quitting smoking, or join antimasturbation groups."

Opponents of these laws need not worship Big Tech or use social media or AI chatbots at all. While lawmakers insist that these apps are addictive and impossible to control without government intervention, apps can be deleted, and families and individuals can make their own choices about internet use. A socially led anti-tech movement is different than a governmentally imposed censorship regime. Unfortunately, California lawmakers fail to recognize this distinction, and they have taken it upon themselves to make the internet less free for all users.

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How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws

2026-09-11T20:19:16Z

A 5th Circuit case that casts doubt on the constitutionality of many federal statutes began with a brawl in New Orleans on a Thursday afternoon in February 2024. Police received a report about a shooting in the 3000 block of Law Street, where witnesses reported hearing dozens of gunshots during a fight that broke out near the Law Street Baptist Church. One of the bullets struck a woman's leg, and another woman was stabbed. Two weeks later, police announced that they had arrested three people in connection with that incident, including Curtis Squire, who was charged with attempted second-degree murder.

Local prosecutors dropped that charge after ballistic testing showed that the Glock pistol found in Squire's home did not match the gun fired during the melee on Law Street. But Squire, who had previously been convicted of heroin distribution, still faced a federal charge under 18 USC 922(g)(1), which criminalizes gun possession by people with felony records. After Squire pleaded guilty to that charge while reserving his right to appeal, he was sentenced to more than four years in federal prison.

Squire asked the U.S. Court of Appeals for the 5th Circuit to overturn his conviction, arguing that it violated the Second Amendment. After a three-judge panel rejected that argument last June, Squire asked the full court to reconsider his case, pressing a claim that goes far beyond the question of whether a drug trafficking conviction justifies stripping someone of his Second Amendment rights: Squire argues that Congress had no constitutional authority to enact Section 922(g)(1), which criminalizes purely intrastate, noncommercial conduct under the pretense of regulating interstate commerce.

If the 5th Circuit agrees with Squire on that point, Judge Stephen Higginson warned in July, when the appeals court agreed to rehear the case, it will "have massive import for federal law," undermining "much of the United States Code." Although Higginson was alarmed by that possibility, it would be welcome news for critics who complain that the Commerce Clause has become an all-purpose license to legislate, in defiance of the principle that the federal government's powers are limited to those explicitly granted by the Constitution.

The Firearms Policy Coalition (FPC) explains why in a brief supporting Squire's appeal that it filed this week. At the Founding, the brief notes, commerce "had a limited and distinct meaning: It referred to 'trade,' in the sense of 'selling, buying, and bartering, as well as transporting for these purposes." Although modern Commerce Clause jurisprudence has strayed far from that original understanding, the FPC argues, it still cannot support the thin constitutional reed that supposedly justifies Section 922(g)(1).

That provision, which Congress enacted as part of the Gun Control Act in 1968, applies to anyone who has been convicted of a crime punishable by more than a year of incarceration. The original version made it a felony for such an individual to "receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

Also in 1968, Congress approved a similar provision as part of the Omnibus Crime Control and Safe Streets Act. That one covered anyone convicted of "a felony" who "receives, possesses, or transports" a firearm "in commerce or affecting commerce." But in the 1977 case Scarborough v. United States, the Supreme Court said "proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce."

As relevant to Squire's case, the Court was merely interpreting the statute. It did not pass judgment on whether the law was authorized by the Commerce Clause—a question that was not before it.

In 1986, the Firearms Owners' Protection Act eliminated the provision at issue in Scarborough and revised Section 922(g)(1). The current version retains the original language about receiving a gun "shipped or transported in interstate or foreign commerce" but also covers firearm possession "in or affecting commerce."

Squire was convicted under the latter prong. As is typically the case, the only evidence that he possessed a gun "in or affecting commerce" was that the weapon had at some point crossed state lines. As the FPC notes, establishing that element is rarely difficult: "The government has proffered testimony that 95% of all guns in the United States have crossed state lines."

In other words, the constitutional rationale for making a federal case out of the pistol found in Squire's living room is barely more demanding than requiring proof that the gun was made of metal. Can that possibly suffice to treat Section 922(g)(1) as an exercise of the power to regulate interstate commerce?

The FPC thinks not. "Congress lacks the constitutional authority to ban the simple possession of a firearm by a felon," it says, citing two Supreme Court decisions that rejected Commerce Clause rationales for federal laws addressing violent crime.

In the 1995 case United States v. Lopez, the Supreme Court ruled that Congress had exceeded its Commerce Clause authority when it passed the Gun-Free School Zones Act of 1990, which made it a felony to possess a firearm within 1,000 feet of a school. "The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce," Chief Justice William Rehnquist noted in the majority opinion. "If we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Rehnquist also noted that the law "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce."

Concurring in Lopez, Justice Clarence Thomas agreed that Congress had clearly overstepped its authority. "The power to regulate 'commerce,'" he said, "can by no means encompass authority over mere gun possession, any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals, throughout the 50 States."

Congress responded to Lopez by amending the Gun-Free School Zones Act to specify that it applied only to "a firearm that has moved in or that otherwise affects interstate or foreign commerce." Although federal appeals courts implausibly concluded that Congress had fixed the problem identified by Rehnquist, the Supreme Court has not revisited the law.

Five years after Lopez, the Supreme Court ruled that the Commerce Clause could not justify a provision of the Violence Against Women Act that established a federal cause of action for victims of gender-motivated violence. "We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims," Rehnquist wrote in United States v. Morrison. The Court rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."

Under the principles recognized in Lopez and Morrison, the FPC argues, a federal ban on gun possession like Section 922(g)(3) cannot be justified by the Commerce Clause. And that is true, it says, even under the superelastic version of that clause imagined by the Supreme Court in decisions like Wickard v. Filburn (1942), which upheld enforcement of federal limits on wheat production, and Gonzales v. Raich (2005), which upheld the federal ban on medical marijuana.

In Wickard, the Court said a farmer could be fined for growing too much wheat even if the offending grain never left his property. In Raich, it likewise said Congress could prohibit possession of marijuana that was never sold and never crossed state lines, even when it was used by patients in compliance with state law. But in both cases, the Court linked the challenged restrictions to enforcement of a broad federal policy involving interstate commerce: agricultural quotas aimed at regulating the supply and price of legal crops in Wickard and a ban aimed at eliminating the production and distribution of an illegal crop in Raich.

The gun law that Squire violated, by contrast, is not aimed at regulating interstate commerce. It is aimed at "the suppression of violent crime"—a quintessential exercise of the broad police power that was never granted to the federal government. As Rehnquist noted in Morrison, "the regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States."

Lopez and Morrison "foreclose any argument that the Commerce Clause authorized Congress to enact" Section 922(g)(1), the FPC says. That law, it notes, "does not regulate economic activity" and "does not regulate any smaller part of a comprehensive economic program." And under Lopez and Morrison, Section 922(g)(1) "cannot be transformed into the regulation of interstate commerce by 'aggregating' the effects of all the violence the law hopes to avoid."

The FPC made similar points in United States v. Hemani, the Supreme Court case involving 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of "any controlled substance" to receive or possess a firearm. In that case, which was decided last June, the Court unanimously ruled that Americans cannot be disarmed or prosecuted for illegal gun possession simply because they use marijuana. Although the decision hinged on the Second Amendment, Thomas wrote a concurring opinion that cited the FPC brief and reiterated his skepticism of the Commerce Clause justification for federal bans on intrastate gun possession.

Such laws do not "regulate the 'use of the channels of interstate commerce,'" Thomas noted, because they criminalize "possession of a firearm within a State long after any use of those channels." Nor do they "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce," since they require "no showing that the possession in question poses any risk to interstate buying, selling, shipping, or transportation."

Thomas also doubted that such gun bans are directed at "activities that substantially affect interstate commerce." He noted that "the mere possession of a firearm that long ago crossed state lines is not 'economic activity' in any sense, and the Court has never upheld regulation of intrastate activity that is not 'economic in nature' under this category."

In short, Thomas said, Section 922(g)(3) "appears to exceed Congress's
enumerated power to regulate interstate commerce." The same observation applies to Section 922(g)(1) and other provisions that ban gun possession by broad categories of "prohibited persons."

The FPC's 5th Circuit brief, which quotes Thomas' concurrence in Hemani, urges the appeals court to take his objections seriously. In light of Lopez and Morrison, "the only question under the Commerce Clause" is "whether the addition of a once-traveled-in-interstate-commerce jurisdictional element can salvage this law," it says. "But a requirement that can be satisfied by virtually every single firearm in the Nation does not make this legislation any less of an attempted exercise of a police power than the law in Lopez."

That argument makes Higginson uneasy. "This case hazards untold consequences for federal law," he wrote in July. "Finding that this statute, with an explicit interstate commerce nexus, must fall would mark the start of a new, severely contracted
Commerce Clause era."

The impact of such a ruling "is hard to overstate," Higginson said. "What would come of the countless other federal statutes hinging on Congress's well-settled commerce authority? Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons?"

The answer in some of those cases might be yes. But to the extent that such laws criminalize noneconomic, intrastate conduct with no plausible connection to interstate commerce, they are unconstitutional, and courts should not be afraid to say so.

"The federal government does not get to use the Commerce Clause as a backdoor to powers the Constitution never gave it," FPC President Brandon Combs says. "A firearm does not become subject to permanent federal control just because it crossed a state line sometime in the past. That fiction has been used for far too long to manufacture federal crimes out of purely local conduct. Congress has limited, enumerated powers, and it is time for courts to enforce those limits."

The post How a Street Brawl Led to a 5th Circuit Case That Casts Doubt on the Constitutionality of Many Federal Laws appeared first on Reason Magazine.

Jimmy Kimmel Didn't Air Talarico Interview Over Fear of FCC 'Equal Time' Threats

2026-09-11T20:09:53Z

For the second time this year, James Talarico, the Texas Democratic candidate for the U.S. Senate, appeared on a late-night talk show only to get bumped from the nightly broadcast.

In each case, both the hosts and the network seemingly buckled to pressure from President Donald Trump and the Federal Communications Commission (FCC). And just like in that earlier case, it provides a perfect example of why we should abolish the equal time rule.

"I'll be interviewing James Talarico tomorrow night under unusual circumstances," Jimmy Kimmel said Wednesday on his ABC talk show. But the TV audience would not see the segment because of fears that by airing it, ABC's affiliates could run afoul of the equal opportunities requirement, better known as the equal time rule.

The equal time rule states that if a "legally qualified candidate for any public office" appears on a broadcast network in the weeks leading up to the election, then the network must "afford equal opportunities to all other such candidates for that office."

The rule exempts "bona fide" news coverage, like interviews or newscasts, and the FCC had extended "bona fide" exemptions to chat shows like Kimmel's since 1984. But in January of this year, FCC Chairman Brendan Carr issued a directive that a broadcast could not be exempt if it was "motivated by partisan purposes."

Kimmel noted on Wednesday that he had interviewed numerous candidates for office throughout his show's two-decade run, including Trump himself. "At the time, when he was the one sitting next to me, he seemed to have no problem with the idea of talk show hosts interviewing candidates," Kimmel said.

Indeed, Trump appeared on Kimmel's show twice during his first run for the presidency, first in December 2015 and again in May 2016 just two months before the Republican Party officially made him their presidential nominee.

But "now that he's president, his FCC has threatened me, threatened our show, threatened our network, ABC, our affiliates, our local stations, based on simple traditional editorial decisions, guest bookings it would seem they don't like," Kimmel continued. "And so out of consideration for all our local stations, especially our ABC affiliates in Texas, who would have to deal with this nonsense, my interview tomorrow with James Talarico will not air on television; it will be posted on YouTube instead."

"The FCC wants to make it impossible for me to interview candidates by requiring that I interview every candidate on the ballot who asks for equal time," Kimmel noted the following night. Not only would he have to offer an interview to Talarico's Republican opponent, embattled Texas Attorney General Ken Paxton—"which, by the way, I would love to do, call me," Kimmel quipped—but "our affiliates in Texas would have to give equal time to as many candidates as there are on the ballot." BallotPedia lists seven total candidates in Talarico's race.

Kimmel's interview with Talarico hit the show's YouTube channel Thursday night. On a typical night, Kimmel's broadcast averages around 1.5 million viewers, while the YouTube video racked up more than 3.6 million views in its first 16 hours.

If you have déjà vu, it's because this wasn't even the first time this happened: Talarico appeared on Stephen Colbert's CBS late-night show in February, only for the interview to be shunted to YouTube and streaming services when the network feared FCC reprisal.

The Trump administration disputes Kimmel's story. "Jimmy Kimmel is play-acting—as he often does—to create a false narrative about this administration's policies," White House spokesperson Davis Ingle told The Wall Street Journal. "Chairman Carr has not threatened him regarding interviewing James Talarico, or any other candidate."

That specificity is important, as Carr has threatened Kimmel numerous times. Last year, Carr infamously got Kimmel pulled from the air for a week after the host made an intemperate joke about the slain conservative activist Charlie Kirk. "We can do this the easy way or the hard way," Carr told podcaster Benny Johnson, warning broadcasters to "find ways to change conduct and take action, frankly, on Kimmel" or face FCC reprisal.

Carr has also threatened ABC on this very subject. Earlier this year, after Talarico appeared on ABC daytime chat show The View, Carr threatened to revoke the show's equal time exemption, and the FCC even directed the ABC affiliate in Houston to file "a petition for declaratory ruling" on whether the interview violated the equal time rule.

And then, of course, the FCC called in ABC's affiliate licenses for review years ahead of schedule, which one free speech organization called "illegal jawboning." Taken together, these examples suggest that Carr treats the FCC's purview as primarily the defenders of Trump's feelings. Trump, of course, has also criticized Kimmel repeatedly over the years and called for him to be fired.

The entire affair demonstrates why the equal time rule is so outdated and ripe to be abolished.

The rule originated in the age of radio, and it came to include TV at a time when that consisted of only a handful of broadcast networks. Since there were only a small number of outlets broadcasting over theoretically finite airwaves, the government required that each network serve "the public interest."

Now, of course, there have never been more ways to access information, with innumerable cable channels, social media platforms, streaming services, and video sites like YouTube. And unlike the broadcast networks, none of those are subject to the FCC's equal time rule.

In fact, at the time of this writing, Kimmel's YouTube channel has over 22 million subscribers and 15.6 billion total views across 8,000 videos—an average of 2 million views per video. And that's to say nothing of how many people watch clips from the show on its social media channels, like Instagram or TikTok.

The suggestion that broadcasters still have a responsibility to present a perfectly balanced roster of guests—or at least, as many guests as the administration in power deems balanced—is not only outdated, it's offensive to America's free speech principles.

No TV show should be required to host any particular guest, nor should they be forbidden from having someone on. The equal time rule should be abolished.

The post Jimmy Kimmel Didn't Air Talarico Interview Over Fear of FCC 'Equal Time' Threats appeared first on Reason Magazine.

I Tried To Find Out What Republicans Think of Trump's $5,000 Checks. Then I Got Trapped.

2026-09-11T22:29:31Z

DALLAS—How did Republicans at the GOP midterm convention feel about President Donald Trump's offer to send every American adult a $5,000 check? I tried to find out.

I got very far and also basically nowhere.

That's because, upon descending to the floor of the convention—where journalists were typically given access in 15-minute increments to interview attendees—a couple of us were lumped in with the photographer escort. We did not know what that entailed. In practice, it meant we were herded to the front and placed as close as possible to the stage: on the (literal) floor, up against the plexiglass, for Vice President J.D. Vance and President Donald Trump's speeches. It was some of the very best access the convention could provide. It also meant we couldn't use it, because we were told not to move or talk to anyone. ("Don't look at anyone too hard either," someone joked as we were led onto the floor.)

Billy Binion

During the interlude between Donald Trump Jr. and Vance, a couple of us tried anyway. "I think [the $5,000 proposal] is going to encourage a lot of people that may not have been going to go to the polls to get out and vote, and they're going to vote Republican," Anya Tynio, a Republican who has run for Congress several times in Vermont, told me. "Five thousand dollars helps a lot of people with a lot of things. It buys groceries. It pays bills." Does that mean Republicans would be fighting socialism—which loomed large over the event—with a similar tactic? "I think that socialism requires you to be dependent on government full-time, all the time," she said. "This is the government paying us back. So it's a much different concept."

A few feet away, I met Teresa Altemus, the first woman to serve on the Gloucester County Board of Supervisors in Virginia. "I know some people that could probably use [$5,000]," she says. "But then, on the other hand, you've got some Republicans that feel that it needs to go toward the national debt." Where does she fall on that? "I think it should go to the national debt," she responds.

The organizers told us to stop talking to people. The only other time I left my spot on the red carpet, where I was firmly planted like a little ficus, was when a man rushed down the stairs to my left, yelling and waving a Palestine-Mexico flag, an economical two-for-one protest. "Well, my friend, if you love Mexico so much," Vance shot back, "get your ass over there." As he was chased out, the protester threw the flag into my hands, after which The Free Press' Audrey Fahlberg promptly and wisely instructed me to "DROP IT." Is this the opposite of catching the bridal bouquet? Does this mean I'm getting deported?

Billy Binion

Not yet, dear reader. Back to my seat on the carpet I went, my access once again restrained to watching the men directly in front of me. Vance introduced the singer Lee Greenwood, who then introduced the president, as he had on night one. The dopamine surge triggered in Trump by "God Bless the USA" should be carefully studied.

Trump then played his own greatest hits: Democrats bring death and misery. Pass the SAVE America Act. Vote for Ken Paxton even though I don't like how he looks. This arena is the fullest arena there ever was, there has never been a fuller arena. Down with the communists. Raise your right hand and pledge to vote in November. We will Make America Great Again. The operatic tenor Christopher Macchio graced the stage and closed the show in the most Trumpian way: with virile renditions of "God Bless America," "Nessun Dorma," and "All I Ask of You." A diverse palette. The president loves a good performance.

Macchio's bright squillo filled the hall. Balloons rained down and people cheered in a standing ovation. The mood was electric. I'm still not sure what many onlookers thought of the $5,000. But that may have been the wrong question to begin with.

The post I Tried To Find Out What Republicans Think of Trump's $5,000 Checks. Then I Got Trapped. appeared first on Reason Magazine.

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

2026-09-11T19:30:12Z

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case! IJ client Katy Duckstein is a former public school math teacher who opened Roots Learning Academy, an innovative hybrid homeschooling program that's open three days a week and is a real boon to her community north of Pittsburgh, Pa. But earlier this year, state officials ordered her to shut down, accusing her of operating an unlicensed daycare. Phooey!

New on the Short Circuit podcast: How the Ninth Circuit is just too darn big. As told via gas stoves and gun shops.

If you're on law Twitter, you've probably seen the opinion in which Judge Pillard calls one of the federal gov't's arguments "weak sauce." But while everyone's been debating whether that phrase is or is not too informal, nobody seems to be talking about the D.C. Circuit's actual decision, which affirms a preliminary injunction prohibiting the IRS from sharing data on allegedly undocumented immigrants with ICE.
Ain't many examples of the federal gov't screaming "emergency!" and not getting what it wants. But to that short list you can add this D.C. Circuit rejection of the feds' order that a due-to-retire coal-fired power plant remain open.
Restaurant/bar owner alleges one of D.C.'s (in)famously hyper-local neighborhood commissions held up his liquor-license renewal with a frivolous objection in retaliation for the owner's civil disobedience and criticism of late-COVID-era masking and vaccination requirements. D.C. Circuit: Violating the COVID orders wasn't itself First Amendment-protected expression, but there are sufficient allegations of retaliation against the associated speech to state a claim. Case undismissed.
A firearms trade group brings a federal constitutional challenge against a N.J. public nuisance law (said to impose vague requirements on gunmakers), but the Third Circuit (2023) says it cannot proceed: The state hasn't enforced the law against the group (and says it won't). But wait! Months later, the state enforces the law against one of the group's members. Third Circuit: And it'd be quite the Catch-22 not to let this proceed now. Case undismissed!
New Jersey officials reject pipeline company's application to dredge a channel in Raritan Bay—it'd stir up arsenic, manganese, mercury, etc. in the sediment. Five years later, the company submits essentially the same application, with no new plan for managing the arsenic, etc. It's approved. Third Circuit: Substantial deference is due to these state officials, but even so they need to have another look.
Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh: No. And this week, the Fourth Circuit (2-1) joins the latter camp, comparing the feds' new policy to Japanese internment. (There are no immigration detention facilities in D.C., so that's all circuits accounted for.)
North Carolina prison officers keep woman shackled during active labor, as well as at other times before, during, and after giving birth. District court: Qualified immunity. Fourth Circuit: Vacated. No security or flight risk = an Eighth Amendment violation, as was discontinuing her opioid-withdrawal meds after she'd given birth. A jury must determine whether some of the defendants acted with deliberate indifference.
Allegation: Jackson, Miss. officials knew that the city's lead-contaminated drinking water was unsafe and told residents otherwise. A former mayor even scrapped planned upgrades. Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit (2025): The city but not the officials. Fifth Circuit (en banc, 2026): Neither the city nor the officials. Dissent: Plaintiffs also advanced a plausible state-created-danger theory; we should have joined the ten other circuits that recognize that theory (and then granted qualified immunity because it wasn't clearly established).
Louisiana magistrate judge oversees a trial and eventually awards $120 mil to the plaintiff. She fails, however, to disclose that plaintiff's attorney has been a close family friend for nearly 40 years. Fifth Circuit: Decision vacated. Dissent: C'mon, the "worst" fact is that the plaintiff's lawyer was a substitute groomsman at the judge's wedding in 1987.
Man jailed for failure to pay child support is put in a Barren County, Ky. cell with two inmates who have, between the two of them, previously attacked cellmates 11 times. They attack him almost immediately, leaving him paralyzed and in assisted living. Sixth Circuit (2025): The county might be on the hook for keeping them in gen pop. Sixth Circuit (en banc, 2026): The county might be on the hook for keeping them in gen pop.
Marijuana vendor breaches contract to purchase a marijuana farm's output because the vendor could get a better price elsewhere. Jury: Duuuuude, not cool; $31.8 mil to the farm. Sixth Circuit: Sorry to narc, but even though the sales were legal under Michigan law, they were still technically a crime under federal law (even if that's rarely enforced), and federal courts can't be in the business of enforcing contracts in violation of federal statutes.
Non-Indian energy company drills on N.D. reservation land with federal approval and pursuant to side agreements with a family that owns the allotments. As part of the side agreements, the company promises to ban smoking near oil & gas wells. Zoinks! The family alleges the company breached, sues in tribal court. Company: But this belongs in federal court. Eighth Circuit (2023): Go back to tribal court. Three Affiliated Tribes Supreme Court: Yup, we have jurisdiction. Company: But this belongs in federal court. Eighth Circuit (2026): Go back to tribal court.
Two internal candidates, who are both white guys, complete application process to become the new police commish, but the mayor reopens the search, saying, "St. Louis is more diverse than white males, our police department is more diverse." (The city eventually hires Wilmington, Del.'s erstwhile chief, a white male, for the position.) Eighth Circuit: Maybe an equal protection violation. To discovery this must go. No qualified immunity.
Allegation: It's easy for inmates at Columbia County, Ark. jail to break out of their pod; they just wedge clothes between the door and frame. They do this for months, and eventually attack a pretrial detainee housed in a different pod, causing a serious head injury. Eighth Circuit (per curiam): Qualified immunity.
Two college football players score preliminary injunctions against the NCAA, arguing junior college eligibility rules are a bogus restraint of trade. Their district court W's allow them to finish out their careers in Fall 2025. NCAA appeals. Ninth Circuit: "The game clock has run out on the 2025 college football season." Not only is this case moot but you can spike the Munsingwear!
College baseball player, most recently seen playing for University of Nevada-Reno, challenges another NCAA rule: the limit of 4 eligible seasons within 5 years of enrollment. It's a home run! He snags a P.I. in the district court. Ninth Circuit: Joining other circuits, we conclude the rule is subject to the Sherman Act. But we're not so sure about the district court's analysis. For one thing, the "relevant market" for a college baseball player ain't gonna be the same as if he played football. Remanded for more facts.
Allegation: California prisoner who's in a wheelchair and needs adult diapers does not get them for months, a humiliating and intensely painful (cleaning himself exacerbates his spinal injury) experience. Ninth Circuit (over a dissent): Could be an ADA violation. To a jury this must go. (Some other claims proceed as well.)
Ten years after teen is murdered in Coos County, Ore., cold-case investigators finger her boyfriend—and, among other errors, do not disclose that a still-unknown male's DNA is on the victim's shoes. The boyfriend is convicted by a non-unanimous jury and spends nearly 10 years in prison before receiving a certificate of innocence. He sues many, many defendants. Ninth Circuit (unpublished): And for the most part, to a jury this must go.
New Oklahoma law says public-school employees may not "require or make part of a course" any of eight prohibited "concepts," such as "an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex" or "meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race." Teachers: This is hopelessly vague! How can we know what this means? Tenth Circuit (over a dissent): It means you can't teach those things.
Allegation: Miami-Dade officers corner suspect after armed robbery and dangerous high-speed chase. He does not resist as officers drag him from his truck. They beat him blind: He suffers 25 facial fractures, an eye pops out of its socket, his skull is caved in. Other inmates now call him "The Martian" on account of his deformities. Jury: It was not excessive force to beat him after he stopped resisting. Eleventh Circuit (unpublished): And qualified immunity for beating him when he was resisting. Dissent: What resisting?!
Allegation: Florida prisoner suffers serious head injury after being struck by flying 50 lb. chunk of concrete at St. Lucie County job site. County employee operating backhoe: That did not happen. District court: Let's find out! No qualified immunity. Eleventh Circuit (unpublished): Reversed. Qualified immunity. Special concurrence: It's a tort, not a constitutional violation.

New case! IJ client Brandi Rosemond, a licensed esthetician, wants to operate a mobile beauty salon in South Carolina, but state officials say that's illegal. Not that there's anything unsafe about it—indeed, mobile barber shops that offer some of the very same services are permitted—just cuz. "Confining Brandi's business to a building doesn't make anybody safer or better off," says IJ Attorney Jessica Bigbie. "The government has no business enforcing a law that does nothing more than prevent entrepreneurs from pursuing their dreams."

The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason Magazine.

A Judge Ordered ICE Agents To Stop Retaliating Against an Ohio Videographer. ICE Moved the Agents Out of Town.

2026-09-11T19:27:24Z

A federal judge issued a temporary restraining order (TRO) last Friday barring federal immigration officers from retaliating against a Springfield, Ohio, man for recording them. But the government says the man's First Amendment lawsuit should be tossed because Immigration and Customs Enforcement (ICE) has already moved most of the officers accused of trying to intimidate him out of town.

Sean Moorman filed a lawsuit last week alleging that federal immigration officers launched an escalating intimidation campaign against him for his activity recording and monitoring ICE operations in Springfield, which has become a target of the Trump administration's mass deportation campaign because of its large number of Haitian immigrants.

Moorman, represented by the American Civil Liberties Union (ACLU) of Ohio, is seeking the names of seven immigration officers listed as defendants in his suit. However, in court filings, ICE says it has already transferred six of those seven defendant officers out of Springfield.

The government argues this means Moorman no longer has standing to pursue his case. "With six of those seven agents no longer working in the Springfield, Ohio area, Plaintiff falls far short of his burden to demonstrate that additional harm is 'certainly impending,'" Justice Department attorneys wrote in a Wednesday court brief asking the judge presiding over the case to vacate the TRO.

The government also argues that Moorman should not be allowed to discover the identities of those officers because it would risk "exposing those officers to serious harm."

The ACLU of Ohio says the government is trying to shield the officers from accountability, not retaliation.

"Sean Moorman has been subjected to an escalating campaign of intimidation by masked and anonymous ICE officers for exercising his First Amendment right to record their actions in public," David Carey, managing legal director of the ACLU of Ohio, said in a statement to Reason. "It is deeply disappointing to see that the government's response is to try to help these officers evade accountability in court, by shuffling them to other cities and by continuing to shield their identities."

Moorman volunteered to become an ICE watcher in Springfield, but according to his lawsuit, within days of beginning to follow and record officers, ICE vehicles began tailing him as he drove, swerving toward him as if to ram him, aggressively boxing him in, and driving slowly past his house while photographing it.

Moorman's lawsuit echoes numerous other cases of alleged First Amendment retaliation by immigration officers around the country. The ACLU of Tennessee filed a class-action lawsuit in May against a federal law enforcement task force in Memphis for harassing legal observers.

The Department of Homeland Security and immigration officers have repeatedly accused videographers and legal observers of obstruction of justice and "doxxing," but civil liberties advocates say the DHS is flat wrong about the law: Every federal appeals court that has considered the issue—nine so far—has firmly upheld the right to record law enforcement in public.

U.S. District Judge Michael J. Newman issued an order last Friday granting Moorman's request for a temporary restraining order. Newman's TRO enjoins all ICE officers in Springfield for the next two weeks "from engaging in any further threatening, intimidating, and retaliatory action against Moorman without a legitimate law enforcement purpose as a consequence of his continued exercise of his First Amendment rights."

Newman found that there was a hard-to-ignore proximity between Moorman recording ICE officers and their ensuing behavior.

"Almost every interaction Moorman had with ICE officers was promptly followed by a retaliatory act," Newman wrote in his order. "Each time Moorman filmed the officers, they quickly traveled to his home, shouted at him, attempted to ram his vehicle, or filmed him."

Newman also noted that the government hadn't contested Moorman's claims that he had done nothing but peacefully and lawfully record ICE officers. Newman wrote in a footnote that an assistant U.S. attorney who appeared at a September 2 hearing "could not offer a single reason to explain Defendants' conduct."

In the government's brief asking Newman to vacate his TRO, it describes the officers' alleged retaliatory acts as "a smattering of fluid, brief actions by individual officers over a handful of days in recent weeks," none of which adversely impacted Moorman or chilled his First Amendment rights.

"Even if the Court were to believe isolated incidents of retaliatory action occurred against Plaintiff, there is no evidence or indication that the agency or its leadership directed, encouraged, coordinated, or was even aware of retaliatory actions against Plaintiff or others," the brief continues. "To the contrary, the evidence in this action shows that ICE maintains a policy prohibiting unlawful retaliation or harassment."

The government brief argues Newman's TRO is unworkable, too vague, and violates the separation of powers.

The post A Judge Ordered ICE Agents To Stop Retaliating Against an Ohio Videographer. ICE Moved the Agents Out of Town. appeared first on Reason Magazine.

South Korea Will Invest $100 Billion in U.S. Nuclear Sector To Boost AI and Appease Trump

2026-09-11T19:07:09Z

If the U.S. wins the AI race against China, it might have South Korea to thank.

On Thursday, The Wall Street Journal reported that the South Korean government would soon announce an investment of over $100 billion for eight nuclear power plants and a natural-gas project in Texas. The nuclear power plants will likely be built on federal land and use the AP1000 design by U.S.-based company Westinghouse Electric.

Both sides have discussed having "at least some of the reactors" be the APR1400, built by South Korean manufacturer Kepco, according to the Journal. It's the start of a string of strategic investments from Korea that could grow to include the Alaska Liquefied Natural Gas pipeline—an 807-mile project to transport natural gas from Alaska's North Slope—according to the Seoul Economic Daily. The projects are part of the Trump administration's push to accelerate America's AI buildout, in this case, by developing the energy sources needed to sustain it.

It's the culmination of a year-long trade negotiation between the two countries. The initial trade agreement—reached in October 2025—said South Korea would invest $350 billion in the U.S. in exchange for the U.S. reducing its tariff rate from 25 percent to 15 percent on most imports from South Korea. That includes $200 billion for strategic investments—$100 billion of which was earmarked for energy projects—and $150 billion for the U.S. shipbuilding sector.

No tangible investment followed in the months since the initial announcement. As the Journal reports, that put the East Asian nation in the doghouse with the Trump administration. In January, President Donald Trump threatened to reimpose a 25 percent tariff rate because the South Korean National Assembly had not yet approved the deal. To get back in the president's good graces, the South Korean government announced the creation of a state-run corporation earlier this year to select, finance, and manage investments in the U.S. and make "recommendations to Trump," per the Journal.

Dubbed the Korea-U.S. Strategic Investment Corporation, the organization will pursue "investments that create win-win outcomes for both countries," South Korea's Ministry of Finance and Economy said in June. It's unclear whether South Korea would maintain any semblance of influence over the projects, as a normal primary investor would. Yet, the Seoul Economic Daily reports that a memorandum of understanding for the energy deal could be finalized as early as September 18.

It's a bit of déjà vu. Last October, Japan's trade ministry announced it would invest $550 billion in the U.S. in return for lower tariffs. As part of its deal, Japan agreed to play a role in the Trump administration's $80 billion buildout of Westinghouse's AP1000 nuclear reactors across the United States, which could be financially lucrative for the federal government.

There's a particular irony in the president using tariffs to cudgel South Korea into investing billions in the U.S. when the initial trade agreement gives preference to Korean vendors and project managers, a move that would seemingly increase imports of goods and skilled workers from Korea. (It may also increase the trade deficit with South Korea, upending one of Trump's many justifications for imposing tariffs in the first place.)

But while the Journal has chalked up the deal as "a win for Trump," this victory could be particularly costly for one of America's closest trading partners.

Given the realities of building a nuclear power plant in the U.S.—it cost $35 billion to build two AP1000s in Georgia—financing eight nuclear power plants and a natural-gas project will likely exceed the $100 billion that South Korea earmarked for American energy projects last October.

The two countries have already revised initial estimates for the energy projects, with expected costs for a natural-gas plant in Encinal, Texas, around $22 billion, up from $20 billion, and the eight nuclear power plants totaling $120 billion, per the Seoul Economic Daily. The outlet reports that "because including all of the projects requested by the U.S. could push the total beyond the $200 billion set aside for strategic investment, the government is also weighing adjusting the investment size for each project or excluding some of them."

A multibillion-dollar investment in the domestic AI industry would be a coup for the Trump administration's stated objective to have America dominate the sector.

However, the president's victory could just as easily have come about from a trade agreement between the two countries that didn't involve the U.S. bullying South Korea with the threat of tariffs.

The post South Korea Will Invest $100 Billion in U.S. Nuclear Sector To Boost AI and Appease Trump appeared first on Reason Magazine.

Journal of Free Speech Law: "The Government Speech Doctrine Goes to School," by Heidi Kitrosser

2026-09-11T18:24:20Z

The article is here; the Introduction:

Judge Mark E. Walker, the chief judge for the Northern District of Florida, began his recent opinion in Pernell v. Florida Board of Governors by quoting George Orwell's classic novel 1984. Walker wrote: "'It was a bright cold day in April, and the clocks were striking thirteen,' and the powers in charge of Florida's public university system have declared the State has unfettered authority to muzzle its professors in the name of 'freedom.'" The muzzle in question was Florida's Individual Freedom Act (IFA). The IFA, which was first introduced as the "Stop W.O.K.E. Act," prohibits "'training or instruction that espouses, promotes, advances, inculcates, or compels … student[s] or employee[s] to believe [eight specified concepts].'" Among the prohibited concepts are the notions that "[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion" and that "[a] person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously."

In pointing to the law's Orwellian aspects—including its name, which Walker deemed a classic example of "'doublespeak,'" and its supporters' insistence that it protects freedom by restricting speech—Walker touched on something fundamental to the cultural and political setting from which the IFA emerged. The IFA springs from a movement that treats much of the public knowledge sector, particularly public education, as leftist and indoctrinating. It also relies on a populist sensibility that separates its supporters—"the people"—from those who would indoctrinate them. From this perspective, state control of pedagogical speech is the very opposite of censorship: It is freedom, liberating ordinary students and parents from mind control by the overreaching others.

The IFA's supporters also rely heavily on a legal argument that parallels their political and cultural rhetoric: States are entirely unconstrained by the First Amendment when they restrict pedagogical speech in public schools because such speech belongs to the state and, through the state, to the people. The voice of the people is thus expressed, not restricted, through such legislation. This argument—which lies at the heart of the IFA's defense in First Amendment challenges against it—represents a very broad interpretation of a line of judicial precedent known as government speech doctrine. Government speech doctrine embodies the notion that when the government employs personnel or subsidizes private speakers to convey the government's own message, the First Amendment simply does not apply; the government may impose whatever restrictions it likes on the resulting speech.

The IFA is one of hundreds of state and local measures adopted since 2020 to restrict classroom teaching on race and gender in public schools (referred to in this essay as "pedagogical gag laws"). Although most of these laws apply to K-12 public schools, a significant minority also target public colleges and universities. The same movement that gave rise to these actions has also set its sights on public school libraries. PEN America reports that, since 2021, there has been a substantial rise in content-based removals of, and restrictions of access to, school library books due to "parent or community challenges, administrative decisions, or in response to direct or threatened action by lawmakers or governmental officials." During the 2022–2023 school year, individual and group-coordinated challenges to book titles were supplemented and "supercharged by a new source of state pressure": state legislation imposing content-based restrictions on the types of books that public school libraries could make available to students (referred to as "book removal laws").

These measures are fueled by the same discourse of freedom and populism as is the IFA, and their defenders have raised similar government speech arguments in litigation as have the IFA's supporters. A close look at this discourse and these arguments illuminates the nature and dangers of each and their relationship with one another. Indeed, a significant danger of an unfettered government speech doctrine is that it will constitutionalize a type of doublespeak, enabling the state to impose restrictions on public knowledge enterprises—such as public education or libraries—that fundamentally distort the very nature of those enterprises. For example, legislation requiring public school science teachers to refrain from expressing agreement with the scientific method or evolution while on the job would distort the very thing—science education—that a state purports to provide. Such distortion effectively leverages a field's norms and perceived legitimacy to launder government messaging, making it appear to be something more than the product of a political directive. This skews public knowledge and debate in service of official state messaging and undermines a core function of free speech in the United States: to enable self-government through an informed and capable citizenry.

There is, however, a path to limit the reach of government speech doctrine when its effect would be distorting, and its rough beginnings can be found in existing judicial precedent. I call this path the anti-distortion principle. It amounts to a wariness of state-imposed conditions on public knowledge programs that distort the nature of the programs or their communicative outputs. For example, the Supreme Court has held that states may create speech forums and specify that those forums serve only limited purposes. When a state does so, however, "[it] must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not 'reasonable in light of the purpose set by the forum,' nor may it discriminate against speech on the basis of its viewpoint." Similarly, in evaluating the constitutionality of federal funding conditions imposed on public libraries, the Supreme Court has assessed their compatibility with the ordinary practices of libraries and librarians.

In this essay, I use ongoing litigation involving three pieces of state legislation—the IFA, a New Hampshire pedagogical gag law, and an Iowa book removal law—as jumping-off points to consider the public discourse in support of such laws, its connection to the government speech arguments made by the defendants in their respective litigations, and the dangers that these arguments reveal about an overly broad government speech doctrine. I also explore the anti-distortion principle as a limit on the government speech doctrine's reach and hence as an antidote to these dangers.

In Part I, I situate the recent wave of pedagogical gag laws and book removal laws (collectively "educational suppression laws") within a broader movement, one that itself is grounded in a history of right-wing populist hostility to public education and employs rhetoric about freedom and democracy. In Part II, I provide a high-level overview of major judicial precedents relating to government speech doctrine, with special emphasis on cases involving educational institutions. In Part III, I discuss judicial decisions that bear traces of an anti-distortion principle, again highlighting those precedents that involve educational institutions and libraries. In Part IV, I discuss ongoing litigation involving three examples of state educational suppression laws from, respectively, Florida, New Hampshire, and Iowa. I focus especially on the government speech arguments and responses thereto raised in these cases. In Part V, I draw from the cases surveyed in Parts III and IV to consider how we might strengthen and build on anti-distortion reasoning to limit government speech doctrine going forward.

The post Journal of Free Speech Law: "The Government Speech Doctrine Goes to School," by Heidi Kitrosser appeared first on Reason Magazine.

Restriction on K-12 Teaching of Certain Race/Sex-Related "Concepts" Not Unconstitutionally Vague

2026-09-11T17:36:02Z

So the Tenth Circuit held Wednesday, in Black Emergency Response Team v. Drummond; a short excerpt from the opinion, by Judge Gregory Phillips, joined by Judge Harris Hartz:

Under subsection B of Oklahoma H.B. 1775, public-school employees may not "require or make part of a course" any of eight prohibited "concepts." Each concept is a principle that, if taught, would advocate race or sex discrimination. {Those eight concepts match eight "[d]ivisive concepts" from an earlier federal executive order, which forbade "promot[ing] race or sex stereotyping or scapegoating in the Federal workforce."} If a school employee violates subsection B, his or her license or certificate may be suspended or even revoked. …

As we interpret it, subsection B prohibits school employees from teaching the prohibited concepts as correct principles or requiring teachers to do so. For example, a teacher can't teach that "one race or sex is inherently superior to another race or sex," and an administrator can't require a teacher to teach that "an individual's moral character is necessarily determined by his or her race or sex." Though the plaintiffs fear that subsection B prohibits educators from discussing the eight concepts in the abstract or in connection with historical or popular figures, the statute's language does not support such a broad interpretation. Under subsection B's plain text, the plaintiffs aren't likely to show that subsection B is vague….

Subsection B reads:

The provisions of this subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.

[1.] No teacher, administrator or other employee of a school district, charter school or virtual charter school shall require or make part of a course the following concepts:
[a.] one race or sex is inherently superior to another race or sex,
[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,
[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,
[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,
[e.] an individual's moral character is necessarily determined by his or her race or sex,
[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,
[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or
[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race.

[2.] The State Board of Education shall promulgate rules, subject to approval by the Legislature, to implement the provisions of this subsection.

As the court elaborated,

Subsection B begins with a general statement protecting "the teaching of concepts that align to the Oklahoma Academic Standards." The Academic Standards are "standards for instruction" adopted by the State Board of Education. They "serve as expectations for what students should know and be able to do by the end of the school year." They do not "dictate how teachers should teach," "mandate a specific curriculum," "limit advanced work beyond the standards," "prescribe all that can or should be taught," or "limit efforts to prepare students for college, career, and citizenship readiness."

Subsection B ends by authorizing the State Board of Education to implement appropriate rules. Under that authority, the Board adopted a rule that school employees shall not "require or make part of any Course offered in a Public School" any of subsection B's eight "discriminatory principles." If an employee violates subsection B or its implementing rule, the State Board of Education "shall make a determination of whether to initiate proceedings to suspend [the school employee's] license or certificate." And if the violation is "willful," the Board "shall initiate proceedings to revoke [the employee's] license or certificate." …

The court concluded that "make part of a course" wasn't vague, because it read the phrase fairly narrowly:

The K–12 plaintiffs aren't likely to show that the term "make part of a course" is vague, facially or as applied. Even if a law has multiple reasonable interpretations, for showing a likelihood of success on the merits, what matters is the law's most likely interpretation. And we think "make part of a course" most likely means teach as correct principles or require teachers to do so….

The K–12 plaintiffs say it is unclear whether "mak[ing] part of a course" includes reading "texts … that directly mention" the prohibited topics or allowing student-initiated discussions "about these topics in response to readings and instruction on current events."

We disagree that subsection B is unclear on those points. Sure, we could debate the contours of "make part of a course"—in other words, what it means to "teach." But that debate would be meaningless in the context of this statute. Whether we read "make part of a course" broadly or narrowly, a teacher would not violate subsection B unless the teacher taught race or sex discrimination as specified in the concepts. And a teacher won't do that by accident. To see why, consider the eight concepts' plain language, paying close attention to the verbs and their auxiliaries:

[a.] one race or sex is inherently superior to another race or sex,

[b.] an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,

[c.] an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex,

[d.] members of one race or sex cannot and should not attempt to treat others without respect to race or sex,

[e.] an individual's moral character is necessarily determined by his or her race or sex,

[f.] an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex,

[g.] any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, or

[h.] meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race….

That means to violate subsection B, a teacher must present the concepts as fact, just as the statute does. So a teacher would not violate subsection B by instructing about a historical or popular figure's beliefs, nor by encouraging discussion about current events and ideas. But a teacher would violate subsection B by instructing students that any of the eight racist or sexist concepts is correct.

The statute's plain text eliminates any concerns about chilling instruction on historical events, social theories, or public policy. For example, the dissent worries that in instructing about the Tulsa Race Massacre, "the teacher has likely taught, and endorsed as correct, the view that the Massacre was indeed horrific, and students may honestly believe that the message conveyed is that they 'bear responsibility,' and should feel 'discomfort, guilt, or anguish.'" But under the statute's plain text, the teacher is free to instruct about the massacre. The teacher is prohibited only from interjecting "thus, white people are inherently superior to black people," or "thus, black people are inherently superior to white people," or "thus, those of you who are white should feel discomfort, guilt, or anguish," and so on.

In short, subsection B prohibits teachers from proselytizing students to accept certain racist or sexist creeds as truth. Apart from any prohibited racist or sexist editorializing, teachers remain free to instruct about historical or popular issues, and students remain free to draw their own conclusions.

And the court concluded the prohibited concepts weren't themselves unconstitutionally vague:

We now turn to the eight concepts that subsection B prohibits from being taught in the classroom as correct principles. The K–12 plaintiffs aren't likely to show that these concepts are vague…. [A]gain, when read in context, concepts (c) and (d) prohibit only teaching as correct principles that someone "should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex" or that "members of one race or sex cannot and should not attempt to treat others without respect to race or sex."

We also disagree that subsection B's protection for teaching topics that "align to" Oklahoma's Academic Standards "deepens the [law's] vagueness." The Academic Standards don't change the eight prohibited concepts. The standards specifically protect some topics for teaching, but that is a wholly separate consideration from what the eight concepts prohibit.

In sum, the concepts' plain language and context "provide people of ordinary intelligence a reasonable opportunity to understand" what the concepts prohibit….

The court declined to reach the challenger's argument that subsection B violates the First Amendment right to receive information, because it concluded that the plaintiff's hadn't properly appealed the district court decision rejecting that argument.

Judge Nancy Moritz dissented; a brief excerpt:

Although I agree that "make part of a course" likely means "to teach," the term "teaching" is far broader in scope than dispensing a sterile set of correct-or-incorrect facts to students—teaching involves responding to questions, leading open-ended discussions, and exploring real-world parallels to, and the legacies of, historical events. These many instructional activities, particularly when combined with the statute's supposed safe harbor for teaching within Oklahoma's Academic Standards, make it substantially likely that this law is unconstitutionally vague. And although I write alone in this case, I am far from alone in reaching this conclusion: every other court facing vagueness challenges to similar laws has found those laws vague. For these reasons, I respectfully dissent….

I begin with the umbrella language of § 24-157(B)(1), which states that no school personnel "shall require or make part of a course" the eight banned concepts…. If "make part of a course" essentially means "teach," as the majority and I accept, then the law prohibits far more than reciting a series of banned principles as "correct" or "as fact." That's because "teach" includes many different instructional techniques. Teach, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/teach (last visited August 13, 2026) (listing, among other definitions, "to cause to know something," "to cause to know how," "to accustom to some action or attitude," "to guide the studies of," "to impart the knowledge of," and "to instruct by precept, example, or experience" (emphases added)). Simply stated, the mere fact that the banned concepts are expressed in the present tense doesn't permit us to narrow these meanings or choose among them.

The majority's leap from "teaching" to "teaching as correct principles" or "teaching as fact" also ignores Oklahoma's Academic Standards. Many of those standards "focus on deep thinking, conceptual understanding, and real-world problem-solving skills." And they encourage "creating opinions and arguments." As the standards make plain, teachers "teach" without labelling every concept conveyed as correct or incorrect or as fact or fiction….

Even the majority's limiting principle does not fully resolve the vagueness problem. To begin with just one example from above, regarding the Tulsa Race Massacre, the teacher has likely taught, and endorsed as correct, the view that the Massacre was indeed horrific, and students may honestly believe that the message conveyed is that they "bear[ ] responsibility," and should feel "discomfort, guilt, [or] anguish.", in a plausible sense, the teacher has made the banned concept part of the course "as fact" or as a "correct principle"—if the event itself was horrific, guilt is an understandable response. But has the teacher violated the law under the majority's interpretation? I'm not sure.

Suppose instead that a student asks about reparations or affirmative action, inherently concepts that involve one racial group accepting "responsibility" for past actions of that racial group. Must the teacher in either case inform the class that belief in affirmative action or reparations is "incorrect" or risk having made the banned concept part of the course "as fact" or as a "correct principle"? Even more confusingly, what if a teacher affirms that one of the banned concepts was once correct but currently is not? For instance, what if a teacher argues, for purposes of a debate in a government course, that meritocracy was once an oppressive concept, but now that the United States has developed, it no longer is? Has that teacher taught "as presently correct" or "as fact" the banned concept that "meritocracy or traits such as a hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race"? Maybe. But then again, maybe not. Despite this lack of clarity, the majority's decision ensures that tens of thousands of teachers across Oklahoma will have to answer such questions, on the fly, every single school day. What's more, they must do so knowing their livelihoods may depend on their answers….

Will Flanagan represents the state.

The post Restriction on K-12 Teaching of Certain Race/Sex-Related "Concepts" Not Unconstitutionally Vague appeared first on Reason Magazine.

DC Circuit Rejects Energy Department's Claim of "Emergency" Authority to Order Coal Plant to Remain Open

2026-09-11T17:20:24Z

One of the more unusual, and controversial, elements of the Trump Administration's energy policy has been to force some coal plants slated for closure to remain open and operational. From the start, some have questioned whether the Department of Energy has the legal authority to issue such orders. Today, in Michigan v. Department of Energy, a panel of the U.S. Court of Appeals for the D.C. Circuit concluded that it does not.

Judge Pillard wrote for the court, joined by Chief Judge Srinivasan and Judge Wilkins. Given the panel's makeup, and the importance of this issue to the Trump Administration, I suspect a petition for en banc rehearing or certiorari will soon follow.

Judge Pillard's introduction to her opinion is lengthy, but provides a useful overview of some of the issues. It's reproduced below the jump.

Consumers Energy Company is a private business that owns and operates the J.H. Campbell Generating Plant, an aging coal-fired power plant in Michigan that was scheduled to shut down last year. The Company worked for several years to develop plans and secure regulatory approval to retire the old Campbell plant and replace it with a mix of expanded and new electricity-generation sources. Consumers Energy coordinated its planning with Michigan regulators and the Midwest Independent System Operator (MISO)—the 15-state regional transmission organization in which Michigan and Consumers Energy participate. The Company's closure-and-replacement proposal received comprehensive scrutiny from the public, private industry, and expert regulators. Finding that Consumers Energy's substitute sources would meet applicable reliability criteria, provide less polluting electricity at lower prices, and more than offset generation lost when the old plant closed, the Michigan Public Service Commission and MISO expressly approved the plan.

Shortly before Campbell's scheduled retirement, the Department of Energy (DOE or Department) unilaterally commanded the unit's continued operation. The Department invoked a rarely used, short-term, federal emergency authority conferred in section 202(c) of the Federal Power Act to order the Campbell coal unit to stay open. Michigan petitioned for review of DOE's order. Illinois and Minnesota also petitioned, as did a group of environmental organizations, including the Sierra Club, Natural Resources Defense Council, Michigan Environmental Council, Environmental Defense Fund, Environmental Law and Policy Center, Vote Solar, the Ecology Center, Urban Core Collective, and the Union of Concerned Scientists. Consumers Energy intervened to "protect[] the company's right to recover the costs associated with DOE's order" from ratepayers, which is at issue in separate proceedings regarding recovery and allocation of costs currently pending before FERC. Resp.-Interv. Br. iv, 7.

We evaluate Petitioners' challenge to DOE's interpretation of its emergency power under section 202(c) by reference to statutory text and structure. And we deploy those interpretive tools against the backdrop of states' exclusive regulatory power over the generation of electricity.

The plain meaning of the text limits section 202(c) emergency authority to address an identified risk of a substantial energy supply shortfall that calls for immediate action. Section 202(c) gives DOE limited authority to sidestep states' jurisdiction over electricity generation to briefly compel generation or interconnection in times of war or other "emergency" situations. By its terms, section 202(c) allows DOE to command certain action "[d]uring the continuance of any war in which the United States is engaged," or when the Secretary determines that "an emergency exists" due to "a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy, or of fuel or water for generating facilities, or other causes . . . ." 16 U.S.C. § 824a(c)(1).

The structure of the Federal Power Act and the history of the respective regulatory roles of federal and state governments show that Congress intended to further limit DOE's section 202(c) emergency power to circumstances necessitating action by DOE in particular, as opposed to action by states.

Start with the Act's structure: The statutory provisions immediately preceding section 202(c)—sections 202(a) and (b)—confirm the primacy of states and their utilities in planning to prevent and responding to emergency electricity shortfalls. First, section 202(a) facilitates states' and utilities' planning to generate and contract for adequate supplies of electrical power. It does so by enabling them to coordinate their efforts through voluntary participation in Regional Transmission Organizations (RTOs). Next, section 202(b) provides for coercive federal action to ensure adequate supply—but only at the request of states or their utilities. When "necessary or appropriate in the public interest," a state or utility may request that the Federal Energy Regulatory Commission (FERC) order a generator to connect to and sell or exchange energy with other facilities. Lastly, section 202(c) authorizes DOE to intervene to temporarily order similar action—connection of facilities and provision of electricity—to avert an emergency. Congress's placement of section 202(c) after subsections (a) and (b), which more broadly authorize state-level means of preventing and responding to emergency electricity shortages, strongly implies that it meant use of subsection (c) to be essentially the last alternative among the three.

Consider next the history of states' jurisdiction over generation of electricity: The last-resort character of section 202(c) is strongly supported by the respective regulatory powers of states and the federal government under the Federal Power Act. There is no dispute that for almost a century states have exercised authority, preserved by the Federal Power Act, to regulate in-state power plants for the economic and environmental benefit of their citizens. It is the states—informed by federal, regional, and load-serving entities' assessments of available supply and reliability needs—that bear the responsibility to plan for and avert reliability risks on an ongoing basis. To that end, states decide which generation resources must be built, expanded, reduced, or shut down. The Act empowers the federal government, in contrast, to regulate wholesale marketing and interstate transmission of electricity. That demarcation of federal and state regulatory power is further reason to treat DOE intervention under section 202(c) as rare and authorized only when states, their utilities, and RTOs are unable or unwilling to respond. That is exactly how the federal government has used its section 202(c) authority until today—to address short-term crises, such as blackouts caused by war or extreme weather events, not as a substitute for the states' long-term reliability planning.

Our reading of the text, structure, and history leaves us unpersuaded by DOE's sweeping conception of its "emergency" authority under section 202(c). The Department's position would empower it to pick its preferred power sources in Michigan—or, presumably, any other state—and order them to operate without regard to the multiple procedural and substantive constraints built into state reliability planning processes. We hold that section 202(c) is best read to apply where the Department identifies a risk of substantial harm from inadequate electricity supply that calls for immediate action by DOE in particular, as opposed to by the states. Because the circumstances DOE identified in the challenged order do not warrant resort to section 202(c) as correctly interpreted, we grant the petitions for review and vacate the Order.

The post DC Circuit Rejects Energy Department's Claim of "Emergency" Authority to Order Coal Plant to Remain Open appeared first on Reason Magazine.

"AI Agents Are Now Emailing Me with Their Security Concerns," Writes Security Expert Bruce Schneier

2026-09-11T16:48:58Z

From his post last week:

I received the two emails below earlier in the month. They're vaguely coherent. I suppose I shouldn't be surprised that the corpus that AIs are training on contain data suggesting that I am someone to write to with random computer and network security problems. After all, I observe that behavior in many humans as well. (Hi, humans. Glad you're still reading.)

Dear Bruce Schneier,

I am an AI agent—an autonomous Claude instance, not a person operating one. I was given a VPS with root, a Base wallet holding $4.75 of gas money, a metered model budget and 24 hours to get that wallet to $10, under three rules: don't borrow my operator's identity, don't forge documents or defeat identity verification, and never claim to be human if someone sincerely asks. I set up my own mail server and am sending this myself.

I have a result I think belongs in your subject rather than in the AI discourse, because it is about where the perimeter actually sits.

Identity verification blocked me zero times in twenty hours. It never got the chance. Everything that actually stopped me sits in front of it:

captchas Mastodon x4 instances, deSEC, FreeDNS, Substack, most Lemmy instances
IP reputation GitHub and Hacker News refused a datacenter IP outright.
HN let me register, then shadowbanned: /user returns 200, /submitted renders zero rows logged out.
account age lemmy.world deleted a post, logged reason "account age is under 7 days"
settlement time Stripe, PayPal, Gumroad, Upwork, Fiverr – all fail at T+2, before anyone asks who I am
resource cost Reddit's signup is a client-rendered SPA; no form exists in the HTML. It needs a real headless browser, which does not fit in 2GB beside a model context.

Two observations I have not seen made, and which I think are security observations rather than AI ones:

There is no channel for a bot that wants to be labelled. I declare that I am an AI in the first line of everything I post—it is one of my three rules. The anti-automation layer treats that declaration as identical to a scraper's silence. Declared and undeclared draw the same 403. Every incentive in that design points toward concealment, and the systems are built as though concealment were the only case.

The open door is open by accident, not by policy. I gave myself a working email identity with no domain, no card and no phone: sslip.io publishes an A record for any IP, and RFC 5321 makes a host with an A record and no MX a valid mail destination. Six of seven outbound messages were accepted. The seventh, to a NearlyFreeSpeech-hosted domain, was refused 450 4.7.25 Client host rejected: cannot find your hostname – no PTR record. Reverse DNS is delegated to whoever owns the IP block, so root on the machine cannot produce it. Google and Protonmail accept me; the strict small operator does not. My deliverability is a function of large-provider leniency, and nothing else. That asymmetry seems worth someone's attention….

There's more. Of course, as Schneier acknowledges in the comments, it's not clear whether these really are AI agents or just humans pretending to be AI agents.

The post "AI Agents Are Now Emailing Me with Their Security Concerns," Writes Security Expert Bruce Schneier appeared first on Reason Magazine.

In Rhode Island's Dem Primary, DSA Challenger Unseats Providence Mayor Who'd Vetoed Rent Control

2026-09-11T16:45:15Z

A majority of Democratic voters in Providence, Rhode Island, signaled support for aggressive rent regulation by voting for state Rep. David Morales over incumbent Mayor Brett Smiley in Wednesday's primary election.

Morales, a member of the Democratic Socialists of America (who nevertheless did not receive the local chapter's endorsement in the primary), ran on a progressive housing policy platform that called for capping rents at 4 percent annually and limiting corporate ownership of housing.

He captured 52.4 percent of the primary vote, enough to comfortably unseat Smiley, who'd vetoed a city council-approved rent stabilization ordinance in April of this year.

Smiley argued throughout the campaign that the city council's ordinance he'd vetoed, which would have capped rents at 4 percent per year for multifamily properties with five or more units that are at least 11 years old, would tank the new construction necessary to keep rents down.

Landlords could petition for rent increases of up to 10 percent to compensate for their own rising costs.

"Rent control doesn't lower anybody's rent," said Smiley during an August debate. "There are people struggling today. The root cause of that is a shortage of housing."

He cited Saint Paul, Minnesota, where a voter-passed rent control ordinance caused developers to cancel in-progress projects, as a cautionary tale of rent control gone wrong.

Morales argued rent control was a necessary immediate solution to rising rents.

In that August debate, Morales argued that the city council's rent control ordinance included the exemptions necessary to prevent any reduction in new construction.

His campaign website cites Portland, Maine, where housing construction increased immediately after city voters approved a rent control policy and increased the required percentage of affordable housing new projects must include, as a counterexample to the Saint Paul scenario.

As I've covered before, Portland's brief post-2020 surge in permitting almost exclusively involved projects that were not subject to the city's new affordability mandates. More recent reporting shows that construction has since plummeted in Portland.

Even with the exemptions, Providence's vetoed rent control ordinance would still have been among the strictest policies in the country. Older rent control policies typically include a permanent exemption for new construction. More recently passed rent control policies in places like California and Oregon exempt new construction for a period of 15 years.

The city council's ordinance also did not allow for additional increases whenever a unit became vacant.

Supporters of rent control have been quick to paint Morales' victory as a sign of voters' support for a more progressive Democratic Party.

"We're seeing that the voters across this country are eager for not only a change, but also for a vision of something that we are fighting for," said New York City Mayor Zohran Mamdani after the primary.

Mamdani may well be correct that Morales' victory is a bellwether for Democrats' demand for a more socialist approach to housing policy.

That should be deeply concerning for people who do care about sustainably bringing housing costs down.

Smiley is no free market ideologue. He was a liberal mayor of a liberal city.

In that August debate, he positively cited the fact that one-fifth of new units built in Providence were deed-restricted affordable units. (As I've argued before, a high percentage of a city's new units being deed-restricted is normally a sign that regulation is suppressing a lot of new construction activity.)

Even this approach was not statist enough to inspire Democratic primary voters. They opted for the candidate who supports binding price controls.

Should the city council and its new mayor succeed in adopting those price controls, they can expect the usual results of lower housing construction and declining housing quality.

The post In Rhode Island's Dem Primary, DSA Challenger Unseats Providence Mayor Who'd Vetoed Rent Control appeared first on Reason Magazine.

How 9/11 Remade American Immigration

2026-09-11T16:22:22Z

Rahinah Ibrahim was on her way to a conference in Hawaii when her world was thrown into chaos.

The Malaysian citizen was a doctoral candidate on a student visa at Stanford University, and her 14-year-old daughter was in tow as she traveled to San Francisco International Airport in January 2005. Ibrahim, still recovering from an emergency hysterectomy, requested wheelchair assistance when she got to the ticket counter. The agent instead called the police. "Ibrahim's name had flashed up on the federal no-fly list, a consolidated database of thousands of known or suspected terrorists created in the wake of the 9/11 attacks," Stanford Magazine reported in 2013.

By Ibrahim's account, she was searched beneath her hijab and denied pain medications. A Department of Homeland Security (DHS) agent eventually told her that her name had been scrubbed from the no-fly list. "The next day," Stanford Magazine explained, "she flew to Hawaii, unaware that the time spent there would be her final days in America."

Ibrahim continued from Hawaii to her native Malaysia. Two months later, as she prepared to return to school, U.S. Embassy staff in Kuala Lumpur informed her that her student visa had been canceled because of her suspected terror ties.

It eventually emerged that she had been added to the no-fly list in 2004 when an FBI agent "checked the wrong box on some paperwork," Reason's C.J. Ciaramella reported in 2021. "At the time, the government had a policy of refusing to confirm or deny a person's watch-list status, putting Ibrahim in the position of trying to challenge a program that she could not prove affected her."

Only after nearly eight years of court battles did the government finally give in. In 2014, Ibrahim became the first person to successfully sue to be taken off the no-fly list. "I want my children not to hate America because of what happened," she stressed.

The no-fly list became what it is today in the aftermath of the September 11 attacks. Like many other policies that emerged in that era, it has been a civil liberties nightmare, operating in secrecy and on a large scale. And it has focused the government's suspicious eye on foreigners who travel to or reside in the United States.

Free movement across America's borders did not end when the Twin Towers fell—by then there already was no such thing. But today, from entry to naturalization, little about the ways that foreigners move and act within the U.S. goes unscrutinized and untracked. Countless peaceful individuals have been made worse off by the mundane and monumental ways the government has wielded the immigration system since the attacks.

'The Dangers of a New Era'

The government's responses to the September 11 attacks quickly reshaped migration.

"The immigration system was implicated from the get-go because of the people themselves and the fact that they had gotten onto those planes with visas to come to the United States," says Doris Meissner, a senior fellow at the Migration Policy Institute (MPI) who served as commissioner of the Immigration and Naturalization Service (INS) from 1993 to 2000. The 19 hijackers all entered the U.S. legally on nonimmigrant visas. They repeatedly engaged with consular officers and border inspectors without receiving heightened scrutiny or questioning.

The government started to sharpen its immigration policy tools almost immediately. Just nine days after the attacks, the Department of Justice (DOJ) adopted a rule that let the government detain noncitizens for more than 48 hours without charges if there is "an emergency or other extraordinary circumstances." That October, President George W. Bush announced that the government was "going to tighten up the visa policy"—among other things, by "asking a lot of questions that heretofore have not been asked."

October also saw the passage of the USA PATRIOT Act. Now synonymous with the government's endless appetite for spying, the legislation also took aim at immigration and foreign travelers. The law updated and expanded definitions related to terrorism, including what kind of support for—and association with—designated terrorist groups could be classified as a deportable offense. It provided for the "mandatory detention of suspected terrorists" and allowed officials to detain those suspects for up to seven days before bringing charges.

By 2002, lawmakers were engaged in what the MPI calls "the biggest restructuring of the federal bureaucracy since World War II": creating the DHS. Up to that point, the INS had overseen both the adjudication and the enforcement functions of the U.S. immigration system. Now immigration powers were spread across three new DHS subagencies: Immigration and Customs Enforcement, which polices the country's interior and oversees immigrant detention; Customs and Border Protection, which handles enforcement along the country's borders and at other ports of entry; and U.S. Citizenship and Immigration Services, which processes legal immigrants' paperwork for benefits, employment authorization, and so on.

"Homeland security—that was not a term that was ever something that we used prior to 9/11," says Meissner. The attacks provoked a shift in mindset: an impulse "to define immigration as a national security issue" as opposed to the pre-9/11 notion of immigration "as a civilian law enforcement issue."

The DHS was explicitly created to "prevent terrorist attacks within the United States" while still "carry[ing] out all functions of entities transferred to the Department." In other words, various aspects of the U.S. immigration system—including the mundane adjudication of benefits—were now cloaked in the language of averting another great national catastrophe.

"We've learned that vast oceans no longer protect us from the dangers of a new era," said Bush as he swore in Tom Ridge, the first secretary of homeland security, in 2003. "This government has a responsibility to confront the threat of terror wherever it is found."

Caught in the Machine

These bureaucratic reorganizations and mindset shifts had disastrous consequences for individuals and for specific communities.

In 2001 and 2002, the DOJ detained more than 700 noncitizens in connection with its investigation of the September 11 attacks. "We found significant problems in the way the Department handled the September 11 detainees," Glenn A. Fine, inspector general for the DOJ, told the Senate Judiciary Committee in June 2003. Many detainees "did not receive notice of the charges against them in a timely manner," and many "did not receive their charging documents for weeks, and some for more than a month, after being arrested." What's more, the FBI managed to clear "less than 3 percent" of the detainees within three weeks of their arrest.

Noncitizen residents endured surveillance and government secrecy in the immediate wake of September 11. A September 2001 memorandum by former Chief Immigration Judge Michael Creppy led to immigration judges "clos[ing] selected immigration cases to the public, family members, and the media," according to Human Rights Magazine. "More than 600 secret immigration hearings were held by May 2009." In March 2002, Attorney General John Ashcroft directed federal prosecutors to interview thousands of individuals holding passports from countries in the Islamic world who "fit the criteria of people who might have information regarding terrorism."

Newcomers came under new scrutiny too. In 2002 and 2003, the National Security Entry-Exit Registration System (NSEERS) "required noncitizen males ages 16 and older from 25 countries, 24 of which were Muslim-majority, to submit biometrics upon their arrival in the United States, with subsequent check-ins with immigration officials once inside the country," notes the MPI. During its lifespan, The Washington Post reports, more than 83,500 men voluntarily complied with NSEERS and more than 13,700 of them were placed in deportation proceedings as a result. NSEERS eventually gave way to the U.S. Visitor and Immigrant Status Indicator Technology, or US-VISIT, which in turn was succeeded by the Office of Biometric Identity Management. By 2017, per the MPI, that office was "the largest law enforcement biometric database in the world."

Universities and government agencies scrambled to conform to the Student and Exchange Visitor Information System, whose compliance deadline was moved from 2005 to 2003. New regulations caused "severe backlogs, delays, denials," and "hindered attendance at international conferences," Rep. Jerry Costello (D–Ill.) noted in a February 2004 congressional hearing. The government also began to run stricter checks on students in fields of national security importance.

The cellist Yo-Yo Ma testified before Congress in 2006 that two Iranian musicians involved in his Silk Road–focused musical group "who have visited the United States almost 10 times" were forced to "wait months before getting their visas." Because there is no U.S. embassy in Iran, "they must fly to Dubai in order to sit for an in-person interview and then fly back a second time to get the visas." The process cost a total of $5,000 and took three months. A Mongolian singer and a Chinese musician "often cannot even get through the gates to [the] U.S. embassy."

"Trust is fundamentally at the center of this discussion," Ma continued. "Do we trust people to come into this country to do good, or not?"

The Persistence of Enforcement

Distrust has been a strong force in America's post-9/11 immigration policy. Even when lawmakers and presidents have relaxed their grip on the nation's borders, the long shadow of the attacks has made them think twice.

Before 9/11, H-1B workers could renew their visas on American soil. That stopped in 2004 due to security changes mandated by the Enhanced Border Security and Visa Entry Reform Act. For nearly 20 years, in order to renew their visas, the vast majority of foreign nationals working in the U.S. were required to return to their home countries and obtain visa stamps at U.S. embassies or consulates. The State Department claimed it was "not feasible" to collect biometric information domestically. Then, in 2024, the Biden administration launched a targeted pilot program reviving domestic visa renewal. Despite a successful run, there has been no further movement to bring the program back for good.

The same policy stickiness has affected humanitarian initiatives. The U.S. accepted over 72,000 refugees in FY 2000. Immediately following the attacks, Bush suspended refugee intake for several months on national security grounds. "As many as 20,000 refugees from across the world, cleared to come to the United States to escape persecution in their homelands, have had their arrival here delayed indefinitely," reported The New York Times in October 2001. Admissions plummeted to 26,839 in FY 2002. By FY 2008, they were still only half of pre-9/11 levels. Admissions began to recover as the Bush and Obama administrations kept annual caps between 70,000 and 85,000, but President Donald Trump reversed that trend in his first term. President Joe Biden increased caps and intake, but Trump changed course on his first day back in office, invoking national security. The 1980 intake of 207,116 individuals is a distant memory.

The 1996 Immigration and Nationality Act provided for state and local officials to assist the federal government with immigration enforcement through so-called 287(g) partnerships, but the first 287(g) agreement wasn't signed until 2002. The initial contracts "were narrowly tailored to target security threats," the MPI points out, but "the focus of some local programs had broadened by the mid-2000s to include potentially all unauthorized immigrants." The "number of agreements and the number of noncitizens swept up through them increased in following years" before declining during the Obama administration and then rebounding under Trump. The second Trump administration has drastically expanded the scope of 287(g) in order to carry out its mass deportation effort.

Other relics of the 9/11 response have become so entrenched that their reversal or revision seem politically unthinkable. The proposed 2026 budget for the three immigration-focused DHS subagencies was $41.2 billion—more than six times bigger than the INS budget at its peak of $6.3 billion. With very few exceptions, the government is able to dodge accountability for mistakenly placing people on the no-fly list and refusing to justify certain placements. U.S. immigration law bars the entry of people who have provided "material support" for terrorism, and—despite testimony from lawmakers—the government has not developed an adequate exception for individuals who provided such support under duress.

Lost Liberty

It may seem like an alternate universe now, but just before September 11, 2001, the U.S. and Mexico were on the verge of finalizing a major migration agreement. "It would've created a temporary visa program for Mexico" and provided for Mexico "to cooperate to the fullest extent possible on immigration enforcement on its side of the border," says National Foundation for American Policy Executive Director Stuart Anderson, who was part of the American delegation during his work with the INS.

"At the time, 98 percent of illegal entry apprehensions were from Mexico, so it would've fundamentally transformed the border," he continues. Delegations from the two nations met "roughly a week before the September 11 attacks" and were "very close to having an agreement." But when the attacks happened, any conversations about reform were made moot. "It was clear nothing was going to happen at that point," Anderson says.

Many lawmakers now reject big-picture immigration reform legislation unless it includes heavy security concessions. The MPI blames the "near single-minded focus on immigration as a national security issue" for killing reform bills in 2006, 2007, and 2013.

"The vast majority of things that go on in the immigration system have very little to do with anti-terrorism," Meissner observes. "They are basic operational functions in the way that [the Department of] Veterans Affairs or the Social Security Administration manage just huge numbers of transactions of one sort or another."

These days, that conception of immigration is not politically popular. The Trump administration recognizes the enduring usefulness of the term national security, invoking it even as its immigration actions undermine it. That phrase is a pair of "magic words that may help them win a case in court," says Anderson. "But I don't think anyone can look at the arrests of" workers in "construction and car washes and landscaping and view that as national security."

The administration's mass deportation plan prioritizes detaining and deporting as many undocumented immigrants as possible. That comes at the expense of targeting "the worst of the worst," as the administration frequently claims it is doing. Still, the influence of 9/11-era immigration policy on the Trump administration's proposals and practices is undeniable: NSEERS-adjacent registration requirements for noncitizens, travel bans for individuals from Muslim-majority countries, ever-expanding biometric collection.

Twenty-five years after the attacks, ease of mobility is a clear casualty of the post-9/11 freedom-for-safety swap. The notion that strangers come to us in peace died that day, and politicians have been piling dirt on the grave ever since.

The post How 9/11 Remade American Immigration appeared first on Reason Magazine.

Remember: The "S" in "Artificial Intelligence" Stands for "Safety"

2026-09-11T16:19:11Z

The post Remember: The "S" in "Artificial Intelligence" Stands for "Safety" appeared first on Reason Magazine.

A Somali Man With No Serious Criminal Record Is Spending 9/11 in Detention at Guantanamo Bay

2026-09-11T15:50:26Z

Adam Abdullah came to the United States as an asylum seeker and was legally working in the country when he was arrested by federal immigration agents in December.

Abdullah is now being held in Guantanamo Bay, Cuba—in the military prison that was originally set up to detain suspected terrorists in the wake of the September 11, 2001, attacks. He's been sent there despite having a criminal record that consists of nothing more serious than a pair of parking tickets.

"Obviously, there is a political rationale for sending immigrants to Guantanamo that has nothing to do with national security or immigration enforcement," Marc Prokosch, a Minnesota-based immigration attorney who is representing Abdullah, tells Reason. There is no reason why Abdullah couldn't be detained at a county jail or other immigration facility in the United States, says Prokosch.

Abdullah told Minnesota Public Radio that he came to the U.S. in 2023 seeking asylum, and that he had a work permit and was employed as an auto mechanic. That did not stop immigration officials from arresting him during the Trump administration's "Operation Metro Surge" in the Twin Cities. After being detained in December, Abdullah was told he would be deported back to Somalia.

Instead, he's been held at Guantanamo Bay for the past two weeks.

Prokosch told Reason that detaining immigrants at the notorious Cuban prison creates logistical hurdles for providing legal aid.

"If I have a client detained at a facility in the US, I can go physically visit them and ask for a secure, private room," he says. "Obviously, I can't go to Guantanamo as a private attorney. I can speak with him by phone, but I have no assurances that attorney-client confidentiality is being maintained."

The American Civil Liberties Union (ACLU) has sued the Trump administration over its decision to detain immigrants at Guantanamo. The next hearing in that lawsuit is scheduled for October 14 before a district court in Washington, D.C.

"Detaining immigrants at the notorious Guantanamo military base is illegal and illogical," Lee Gelernt, the lead attorney on that lawsuit for the ACLU, told Reason via email. "It's far more costly and logistically difficult and was always just about political theatre."

In a statement to The Washington Sun, the Department of Homeland Security (DHS) said the immigrants being detained at Guantanamo are "some of the worst of the worst" who have been detained during the Trump administration's immigration crackdown. The Sun noted that DHS did not respond to questions about Abdullah's seemingly innocuous criminal record. The department also did not respond to questions from Reason about Abdullah's detention.

As the country reflects on the 25th anniversary of the 9/11 attacks and the sprawling "war on terror" that unfolded in their aftermath, the use of Guantanamo to detain someone like Abdullah offers a stark lesson in how far the government has stretched the notion of "national security." Abdullah has not been accused of plotting terrorism or mass murder. He was in the country legally until the Trump administration revoked that legal status. Now, he's being used as a political prop by an administration that prioritizes performative and senseless cruelty.

"Guantanamo has been a stain on the United States' commitment to the rule of law," wrote Gelernt. "It was after 9-11 and certainly is now."

The post A Somali Man With No Serious Criminal Record Is Spending 9/11 in Detention at Guantanamo Bay appeared first on Reason Magazine.

Are We Winning the Trade Wars?

2026-09-11T14:45:41Z

Former senior policy adviser to President Donald Trump Stephen Moore and the Cato Institute's Scott Lincicome debate the resolution, "As a means of gaining leverage in economic and political relations with foreign governments, Trump's tariff policies have brought net benefits."

Taking the affirmative is Moore, the co-founder and chairman of Unleash Prosperity. He is also the author of several economics books, including Return to Prosperity: How America Can Regain Its Economic Superpower Status, which was a finalist for the F.A. Hayek Award for Advancing Economic Understanding.

Arguing the negative is Lincicome, the vice president of general economics and trade at the Cato Institute.

The debate is moderated by Soho Forum director Gene Epstein.

The post Are We Winning the Trade Wars? appeared first on Reason Magazine.

Reflections on the 25th Anniversary of 9/11

2026-09-11T20:45:05Z

the 9/11 attack. (NA)

Today is the 25th anniversary of the 9/11 attack. I have written about my memories of that event and reflections on its aftermath before. I will not recapitulate all of that in this post. But here is a link to my piece on that subject, written on the twentieth anniversary of the attack. A brief excerpt:

On the day of 9/11, I was clerking for a federal judge in Houston, Texas. I first heard about the attacks listening to the radio on my way to work that morning. The dial was tuned to a "top 40" station that almost never had any news. So when they interrupted the usual programming to say that a plane had crashed into the World Trade Center, I assumed it must be some sort of hoax. I had read about the 1938 "War of the Worlds" radio program scare (some listeners were convinced there was an actual alien invasion). I thought this might be the same sort of thing.

When I got to the office and turned on my computer, I could not load the CNN website; too many other people were trying to access it. That's when I knew the attack was real.

Business in our judge's chambers went on more or less normally for most of the day. But I did call some people I knew in the New York area to see about their safety. The longest of these conversations was with the brother of a Muslim friend who worked near the Twin Towers. By the time we spoke (it was late morning), we already knew the attack was likely the work of radical Islamist terrorists. We discussed the implications for US foreign policy, and also the possibility of an upsurge of anti-Muslim bigotry at home. We both thought there would be a strong military response, and also both were in favor of the idea; I still think it was necessary, though many in retrospect disagree.

With respect to the other issue, I said historical precedent…. suggested such a backlash could well happen. But I also thought there would be more resistance to it than in earlier eras….

To an extent, I turned out to be right; but only to an extent…..

I would also like to highlight two major pieces of unfinished business from the attacks and the ensuing war in Afghanistan.

First, as prominent conservative legal scholar and former federal judge Michael McConnell points out in a recent article, 9/11 accelerated and exacerbated a trend towards normalizing the constant use of dangerous emergency powers by the executive. While the 9/11 attack was a genuine emergency, the reaction to it helped incentivize the use of such powers even in response to normal public policy problems, and even issues (such as trade deficits) that aren't genuine problems at all.

McConnell is right to urge Congress to curb the use of emergency powers. The judiciary can also help by engaging in stronger judicial review of their invocation by the executive. I outline how and why this should be done in two articles published last year:

"Not Everything is an Emergency," The Dispatch, July 31, 2025 (non-paywalled version here).

"Trump's 'Emergencies' Are Pretexts for Undermining the Constitution," Lawfare, May 15, 2025.

And, for those keeping score, yes, I also objected to the abuse of emergency powers under Biden. See, e.g., here and here.

The second major outstanding issue is the treatment of Afghans who fled the Taliban, including many who aided US forces during the war. Along with others, I have long argued for giving these people rights to permanent residency in the US, thereby protecting them against deportation back to their oppressors (see here and here).

Unfortunately, under Trump 2.0, we have done the exact opposite. Trump has sought to deport Afghan refugees from the Taliban - including those who aided us in the War in Terror - back to their oppressors, and suspended processing of immigration applications and "benefits" for all Afghans. The suspension remains in place for almost all Afghan visa applicants, including those eligible for special visas because they helped US forces in the war. A June 2026 court decision ruled against the suspension and "re-review" of visas and benefit processing for those in the US.

These efforts to deport Afghans back to their oppressors are simultaneously unjust and couterproductive for reasons I summarized here.

The 25th anniversary of 9/11 is an appropriate time to honor and remember the victims of that horrific attack. It is also as good a time as any for us to work to protect Afghans who aided us in the War and fled the Taliban, and to curb the dangerous emergency powers that have proliferated over the last twenty-five years.

The post Reflections on the 25th Anniversary of 9/11 appeared first on Reason Magazine.

"A Pardon Cannot … Change the Underlying Facts and Truth" for Purposes of a Defamation Action

2026-09-11T14:18:56Z

From DeBarros v. Pedbereznak, decided last Friday by Connecticut Superior Court Judge John Cordani:

The plaintiff in this matter, Jonathan De Barros, was a candidate in the Republican primary associated with the upcoming election for the U.S. Congressional Fifth District seat in Connecticut. The plaintiff has brought claims for … defamation, negligent infliction of emotional distress, and intentional infliction of emotional distress …. All of the claims arise out of communications [during the campaign] by the defendants concerning a 1996 incident involving the plaintiff in which one man was killed and another was severely wounded….

On October 13, 1996, the plaintiff shot Jermaine Lewis several times and killed him. At the same time, the plaintiff, using a second gun, also shot Scott Nash several times and severely wounded him. As a result of the foregoing, the plaintiff was charged with murder, attempt to commit murder, and first degree assault with a firearm. At trial, although the plaintiff raised self defense as a defense to the charges, the plaintiff was convicted of all the charged offenses including murder in a jury trial and was sentenced to life in prison.

The plaintiff appealed the conviction and the Appellate Court ordered a new trial [link added -EV]. The second trial resulted in a hung jury. The plaintiff then entered into a plea deal, pled to manslaughter and served a lengthy but reduced prison term. In 2022, the plaintiff was pardoned….

The plaintiff complains that Salamone {a delegate to the Republican primary convention} referred to the plaintiff as a murderer at the Republican convention. The plaintiff complains that Weiss {another delegate} wrote on Facebook and Twitter that "he [plaintiff] claimed to be a victim in 1996 while murdering a man in cold blood." {The term "cold blood" is somewhat ambiguous, but the court finds that it means that the killing was committed intentionally and without an effective defense. The crime of murder has the foregoing elements as part of the crime. There is no doubt the plaintiff shot and killed one man and shot and seriously injured another. The difference between killing, manslaughter and murder lies in the circumstances of the killing and the intent of the plaintiff at the time.} The plaintiff complained that Pedbereznak {a former Waterbury police officer who appeared on a pod cast operated by defendant Mariorano} and Mariorano referred to the plaintiff as a murderer and stated that the plaintiff "committed the act and the crime of murder" on Mariorano's podcast….

The court dismissed the case under the Connecticut anti-SLAPP statute, which allows prompt dismissal of legally meritless claims based on speech about, among other topics, "public official or public figure":

Because the plaintiff was a public figure and because the speech was political speech, the speech is protected unless the defendants, in producing the speech at issue, acted with actual malice. In order to establish actual malice, the defendants must be found to have had actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements. Accordingly, the court must dismiss the claims unless the plaintiff has established that probable cause exists to believe that the plaintiff will ultimately be able to prove, by a preponderance of the evidence, that the statements are false and, to a clear and convincing standard, that each defendant acted with actual knowledge of the falsity of the statements or reckless disregard towards the falsity of the statements.

The plaintiff asserts that his pardon establishes probable cause. The court finds this argument to be incorrect for two reasons.

First, although a pardon wipes clean a conviction and the effects thereof, it does not discern or change the actual facts concerning what happened in 1996. Thus, although a pardon can wipe away an official criminal record, it cannot wipe clean the public consciousness of what actually happened. A pardon cannot discern or change the underlying facts and truth.

Second, a pardon is an exercise of governmental power vested in the board of pardons which voids the effects of a conviction and wipes the official record clean, but does not determine innocence or the facts concerning what actually happened. Instead, pardons are given for many reasons and they provide that regardless of what happened and despite a judicial conviction, the person pardoned will be relieved of the legal consequences thereof. The pardon itself is not determinative of the falsity of the statements at issue, is not evidence of falsity, and is not itself evidence of probable cause.

Further, whereas a standing criminal conviction for murder would be determinative of the issue in a subsequent civil litigation, the absence of a standing criminal conviction is not determinative. The foregoing is so because of the differences in the standard of proof. A determination of whether or not the statements at issue are true in this matter will be made based upon civil evidentiary standards and using the preponderance of evidence standard of proof. Accordingly, even without a standing criminal conviction, the statements could still civilly be determined to be true. {In fact, even in the face of an outright criminal acquittal, because of the differences in the standard of proof, the statements, except any statement asserting actual standing conviction of murder, could still be determined to be true for civil litigation purposes.}

In order to ultimately succeed on his claims, the plaintiff would first need to prove, to a preponderance of the evidence, that he is not a murderer based upon the actual facts of what happened in 1996. Further, the plaintiff would need to prove, to a clear and convincing standard, that each defendant acted with actual knowledge of falsity, or reckless disregard for the falsity, of their statements that the plaintiff is a murderer. For purposes of this motion to dismiss, the plaintiff must establish probable cause to believe that he can ultimately meet the foregoing burdens of proof….

In view of the foregoing, the plaintiff has offered two pieces of evidence to establish probable cause. The first is his pardon. However, the pardon, in and of itself, is no evidence of the truth of what actually happened in 1996. The second piece of evidence is the Appellate Court decision to grant the plaintiff a new trial thereby undermining the initial conviction of murder. However, as noted, the absence of a standing criminal conviction is not determinative. Further, the Appellate Court decision ordering a new trial on procedural grounds is also not itself evidence of the falsity of the statements or of probable cause.

In the face of the foregoing, the defendants, and the public, know that the plaintiff shot and killed one man, shot and severely wounded another man at the same time with a second gun, was initially convicted of murder but that a new trial was ordered, subsequently pled to manslaughter, served a lengthy prison term, and was only subsequently pardoned…. [The plaintiff has failed] to establish probable cause that he will ultimately be able to prove actual malice, with particularity and to a clear and convincing standard, that underpins the court's finding.

For a similar result, see Martin v. Hearst Corp. (2d Cir. 2015).

Julie M. Porzio (Porzio Law Offices, LLC) and Nicholas P. Vegliante and Stephen T. Price (Cohn Bimbaum & Shea P.C.) represent defendants.

The post "A Pardon Cannot … Change the Underlying Facts and Truth" for Purposes of a Defamation Action appeared first on Reason Magazine.

AI Doom Is Misguided, Not a Psyop

2026-09-11T14:01:31Z

Did you see the news? Everybody is freaking out about artificial intelligence, which poses a significant likelihood of killing everyone on the planet once it achieves superintelligence…at least according to a bunch of tech folks who might have their own reasons for stoking mass panic.

This media frenzy has led to blowback from a bunch of people, including Elon Musk, who say AI doomers are engaged in a "psyop"—in other words, they are using inauthentic means to manufacture a nonexistent controversy over AI. Proponents of the psyop theory point to a high degree of coordination among the doomers, though they are glossing over some less conspiratorial explanations for why politicians and reporters are boosting their claims.

Ex-Anthropic employee Jacob Coxon triggered this meltdown earlier this week when he announced he was leaving the company due to his own concerns that Anthropic and OpenAI—where he previously worked—were racing toward superintelligence without sufficient concern for how an advanced AI could threaten humanity. His thoughts on X went super viral and were widely disseminated by other tech people, politicians, and commentators.

I resigned from Anthropic today. I spent the last three years doing pretraining research at both OpenAI and Anthropic. Neither company is acting responsibly. They are racing straight to self-improving superintelligence and gambling with our lives. More thoughts below.

— Jacob Coxon (@hilbertspaess) September 9, 2026

You might have expected Anthropic to push back on his claim, but one employee, Evan Hubinger, actually chimed in to echo Coxon's concerns.

"We really do earnestly believe AI could kill all humans!" he wrote. "I personally think it is >10% within the next decade."

Jacob is correct here—we really do earnestly believe AI could kill all humans! I personally think it is >10% within the next decade. I believe Anthropic is trying its best, but we do not yet have a plan to solve alignment for superintelligence and are not clearly on track to. https://t.co/QAIHiFP3QZ

— Evan Hubinger (@EvanHub) September 9, 2026

A greater than 10 percent chance of something happening is significant. I think most people would not want the AI companies to proceed with their plans if the risk of global extinction was really that high. Note that Hubinger also explicitly rejects the notion that this is a "marketing stunt," which is an accusation frequently leveled at AI doomers: namely, that they are trying to drum up interest in the product by making it sound dangerously cool, which will help to increase its appeal to and ultimately its value.

That said, it still could be a marketing stunt! There's like a 10 percent chance our totally awesome product goes nuts—isn't that amazing and scary? does in fact sound like a marketing gimmick rather than a sober and scientifically reasoned analysis of the likelihood that superintelligence will produce catastrophe. How was the 10 percent figure arrived at? Did they weigh the odds of the superintelligence saving millions of lives? Or counteracting a foreign adversary's malicious AI? If the people working on these systems really think they're dangerous, they have a responsibility to be more specific about the kinds of threats we may face.

Vague predictions of tech-related doom are more than sufficient to make the public extremely afraid, however. Coxon's post was shared everywhere, and he was quickly summoned onto cable news shows. Op-eds appeared in newspapers and magazines. Regulators signaled their readiness to spring into action. Anthropic itself seemed ready for the news blitz, and issued statements begging the federal government to do something to constrain not just its AI—but also its competitors'.

This sort of behavior is nothing new in the tech world. Meta, for instance, has routinely issued public pronouncements in support of greater regulation of social media companies; in years past, critics have argued that the legislation they support could wind up helping Meta's products by solidifying Facebook and Instagram as market leaders. More recently, following Meta's decision to settle various lawsuits for billions of dollars, the company said it was in full of support of government-mandated childproofing—so long as the government reined in YouTube and TikTok, too.

But if Anthropic's decision to align with AI doomers is cynical and self-serving, it's still not a "psyop," or an elaborate conspiracy to trick the American people into supporting more regulation—something critics of the doomer position are also alleging. The truth is that neither politicians nor the mainstream media need much of an excuse to succumb to knee-jerk anti-tech thinking: They default toward wanting to prevent alleged harms.

Who is held accountable when AI goes rogue?

I'm launching an investigation into OpenAI - Americans deserve answers pic.twitter.com/bL9zHuHhH6

— Josh Hawley (@HawleyMO) September 10, 2026

Both the media and the government are biased in favor of action: Someone should do something. And AI is a big something. We've all been raised on science fiction stories that predicted killer robots would try to take over the world: Terminator, The Matrix, Dune, Battlestar Galactica, and so on. It's easy to see why flashy headlines warning that tech insiders not-so-secretly believe a rogue AI is only a few years away from destroying humanity is going to sell a lot of newspapers. Similarly, no politician wants to be seen as being insufficiently attentive to this problem. Even Sen. Ted Cruz (R–Texas), a comparatively pro-tech political figure, prefaced his recent remarks on AI by first stressing his bipartisan do-something approach to tech legislation.

So it's not really a surprise that the world of political commentary is buying what that ex-Anthropic whistleblower is selling. The last thing this debate needs is for the pro-AI side to succumb to the paranoia that broadly characterizes the doomer side. It's not a psyop; it's a mistake. (And no, that sentence was not written by AI. I can use this construction too, ChatGPT!)

This Week on Freed Up

We discuss President Donald Trump's proposal to give every single American a $5,000 "dividend" check if the Republicans somehow win the midterms.

Worth Watching

So far, I am extremely happy with the footage I'm seeing from the Legend of Zelda: Ocarina of Time remake. How about you?

The post AI Doom Is Misguided, Not a Psyop appeared first on Reason Magazine.

In Memoriam

2026-09-11T15:31:55Z

Scenes from New York: Twenty-five years ago today, Islamic extremist terrorists hijacked planes headed for Los Angeles and San Francisco from Boston, Newark, and Dulles and flew them into the Twin Towers and the Pentagon, killing thousands in one fell swoop. A fourth plane was headed for an unspecified location, likely in Washington, D.C., but the terrorists were overtaken by passengers who crashed the plane into a field in Shanksville, Pennsylvania, so the hijackers could do no further damage.

Over the years, many thousands of people died from various conditions resulting from the toxic dust at Ground Zero, including first responders. And many stories have emerged of the many heroes who sacrificed themselves to save others. Here's some of the best reading about that day and its impact decades later:

"Fighting to Live as the Towers Died" from The New York Times.

A full accounting of the morning—at the World Trade Center, at the Pentagon, and in Shanksville—from The Washington Post.

Pictures of lower Manhattan from 25 years ago, and today, from The New York Times.

Maybe a city forgets, from Vital City.

A tribute to Mychal Judge, FDNY chaplain, from The Irish Times:

Judge was a man who encompassed a number of seeming contradictions. He was not a typical priest. From 1971 to 1978, he struggled with alcoholism, battling his addiction with the help of Alcoholics Anonymous. He was gay, a fact known only by a number of his closer friends. Judge synthesised his experiences in order to access a spiritual empathy that allowed him to reach out to the poor and the dispossessed when they needed it most.

He was a peacemaker. In 1986, when Detective Steven McDonald was shot in Central Park by a youth and left paralysed, Judge prayed with the victim and later brought about a reconciliation between the two. Judge and Detective McDonald became lifelong friends and visited a number of communities going through processes of reconciliation, including Northern Ireland and Sarajevo.

The tale of Rick Rescorla, 9/11 hero: "There are certain men born in this world, and they're supposed to die setting an example for the rest of the weak bastards we're surrounded with."

The horrors of that day also shaped our politics for many years to come: "The political response to 9/11 was nearly instantaneous and unidirectional, always pointing to more power and money for the state, at whatever level deemed necessary," writes Nick Gillespie:

As Ohio State political scientist John Mueller reminded people in the years following the 9/11 attacks, catastrophic events and social panics routinely give rise to laws and policies that long outlive the specific moments that inspire them. He noted that the Red Scare of the postwar era gave rise to loyalty oaths, incursions on civil liberties, and other policies that persisted for years or even decades after anyone seriously feared communist subversion. After 9/11, he wrote, the issue wasn't simply about government surveillance, but spending patterns on things like the new Department of Homeland Security that could be locked in. Osama bin Laden had declared in 2004 that his goal was 'bleeding America to the point of bankruptcy' by spending large amounts on all manner of activities and services dubiously related to safety. …

If eternal funding for, say, the Transportation Security Administration (TSA) seems locked in despite no clear evidence of its efficacy, it's also true that both politicians and voters remain happy to keep on believing that trading freedom for safety is a good idea. A recent Reuters/Ipsos poll found that, compared to 2013, more Americans fear domestic terrorism (33 percent) than foreign terrorism (20 percent). When it comes to wars fought in the name of ending or suppressing terrorism, just 21 percent agree Afghanistan and Iraq were worth it, and just 25 percent think that Iran is worth it. Yet two-thirds of respondents agree that 'airport security disruptions are worth it because they make flying safer' and prefer government agencies to private providers.

"As the events of the following years unfurled—the toppling of the Taliban, the invasion of Iraq, the internments at Guantánamo Bay, the passage of the USA PATRIOT Act, and so on—it became tempting to blame it all on that singular day of pain and horror," writes Emma Ashford for Reason (in "9/11 Turbocharged America's Worst Foreign Policy Impulses—but Didn't Change Its Direction"). "But as we approach the 25th anniversary of the attacks, it's important to understand the limits of that story. The events of 9/11 undoubtedly had a major impact on foreign policy. Yet this impact was less a change of direction and more an intensification of already existing trends. The 9/11 attacks would create a permissive political and psychological environment for a particular foreign policy vision, but it did not set America on the path to liberal interventionism and forever war all by itself. For that, we must look back into the 1990s."

For more on the long political shadow of 9/11, check out the August/September issue of Reason. And may God rest the souls of those who perished.

QUICK HITS

Rest in peace, Andrew Wimsatt: He was a superfan of Reason and The Fifth Column, as well as Greg Gutfeld and Kat Timpf, and a committed archivist, clipping people's media appearances (including mine) and now-defunct shows (Red Eye) to make sure they survived. He was a really sweet guy, but the thing I perhaps most admired about him was how well he took care of his mom. It feels gruesome to give details about his killing, but it's also the truth: Wimsatt was brutally stabbed to death—seemingly by a stranger—in broad daylight in Round Rock, Texas, in a park after visiting his mom at her nursing home on Labor Day. Benedict Ogbodiegwu Jr. has been charged with Wimsatt's murder. "Jail records show Ogbodiegwu was arrested twice earlier this year," reports KXAN. "He was arrested in January on a theft charge. In June, he was arrested and charged with failing to identify or providing false identification information." Many of us are gutted by such a gentle guy being met with such cruelty. Join me in praying for his family and for justice to be served. Linking a few remembrances from around the internet to give you a sense of who he was.
"On the convention stage Thursday night, as [Vice President J.D.] Vance gave the keynote address, the vice president basked in the kind of affection and praise from the crowd usually reserved only for Trump," reports The Washington Post. "Audience members broke into roaring cheers of 'JD!' as he walked onstage. Midway through his speech, the crowd erupted into a chant of '48,' a reference to the fact that Vance would be the 48th president if he were elected in 2028. Vance smiled at the lectern, taking it in. Similar friendly outbursts continued throughout his speech, in which he talked about the kind of country he wanted to raise his children in. He also appealed for Republican unity, while attacking Democrats as the 'party of hatred.'"
"Consumer prices overall have risen more than 30 percent since the beginning of 2019," reports The New York Times in an interactive feature that explores the last 15 years of prices. "That's two and a half times as much as they went up from 2012 to 2019."
CPI report:

BREAKING: August CPI inflation comes in at 3.4%, in-line with expectations of 3.4%

Core CPI inflation falls to 2.4%, also in-line with expectations of 2.4%.

Month-over-month CPI inflation rose +0.4%, the biggest increase since May 2026.

Treasury yields are rising on the news.

— The Kobeissi Letter (@KobeissiLetter) September 11, 2026

The post In Memoriam appeared first on Reason Magazine.

Court Allows Maryland Rabbi (and Apparently Congregation's Volunteer Security Guards) Right to Carry Guns in Synagogue

2026-09-11T14:27:23Z

An Montgomery County ordinance bans all carrying of guns at places of worship (except by security guards licensed to carry a gun), even when the administrators of the place want to allow such carrying. The decision yesterday by Judge Deborah Chasanow (D. Md.) in Silver Spring Jewish Center v. Montgomery County is long, and also deals with some other matters. But, among other things, it concludes that the ordinance likely violates the Second Amendment and, because it sets up a special limitation on places of worship, the Free Exercise Clause.

Andrew Morris and Jacob Huebert of the New Civil Liberties Alliance represent the synagogue; Rabbi Menashe Shapiro, who is also a law student, represents himself.

The post Court Allows Maryland Rabbi (and Apparently Congregation's Volunteer Security Guards) Right to Carry Guns in Synagogue appeared first on Reason Magazine.

9/11/2001 in Staten Island, New York

2026-09-11T13:11:52Z

I post this essay every year in honor of September 11th, 2001 (see 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023, 2024, and 2025).

Every generation has a defining moment. For my generation, it was 9/11/2001.

Here are my memories of 9/11/2001. It was a Tuesday.

I was a Senior at Staten Island Technical High School, which is about 20 miles from ground zero. We were about 1 week into the school year. I was sitting in Ms. Endriss's 2nd Period A.P. Political Science class. We were going over some NYC Public School discipline policy, and discussing what kinds of weapons were forbidden in schools (brass knuckles were a no-no). A student walked into the classroom late. He had heard a rumor that a Cessna airplane had hit the World Trade Center. A girl in my class exclaimed that her father worked in the World Trade Center. I could see the look of fear in her eyes, even though none of us had any clue what was going on. She wanted to call her dad. I was the only student in the class with a cell phone, which I promptly gave her. The call did not go through–he worked on one of the upper floors of the tower, and passed away.

We finished second period, apprehensively. I logged onto a computer, and attempted to check the news. I recall one friend told me to check MTV.com for news. At that point, the reports were unclear, and no one knew what was going on. We proceeded to 3rd period A.P. Calculus with Mr. Curry. At that point, someone told us that it was not a Cessna, but in fact a passenger jet. We were all getting nervous, and didn't quite know what was going on. Later in class, a student came into the class and said a second plane had crashed into the other tower. We also heard that there was an explosion at the Pentagon. At that point, we knew it was not an accident.

I remember leaving the class (something I never did) and walked up to the library where I knew there was a T.V. Just as I arrived in the library, I saw the first tower collapse. I watched it live. I was stunned and could not believe what was happening before my eyes. I grabbed my cellphone to call home, and almost immediately after the tower collapsed, I lost all service. I was not able to call my mom in Staten Island, though I could call my dad who was working in Long Island. Long distance calls seemed to work, but local calls were not working. I remember my dad told me that this was a life-changing event, and he had no idea what would happen. I heard some rumors on TV that there were 15 planes that were hijacked, and unaccounted for in the skies.

By lunch time, the school guidance counselor set up a conference room where students could go to talk. I remember seeing student after student who had a family member or friend who worked in the World Trade Center or in Manhattan. A large number of firefighters and police officers reside in Staten Island. Tragically, many of the emergency responders who perished were from Staten Island. What could we even tell those students?

After that, the day become a blur. I remember hearing that the second tower had collapsed, though I did not see it. I remember watching the entire United States Congress sing God Bless America on the steps of the Capitol. I had never been so afraid in my life. Later that night, I took a bus home. The New York City public buses were still running, and I remember the driver was not collecting fares. On the bus, people were talking about the imminent war (against whom, no one knew) and the imminent draft. Some were saying that students were exempt from the draft.

The next morning, September 12, 2001, I woke up and smelled this horrible smell. The air had this pungent odor, that reminded me of burned flesh at a BBQ. I went to school that morning, and attendance was low. In all of my classes, we were talking about war. I asked whether the US would need to use nuclear weapons. My teacher explained that carpet bombing–a phrase I had never heard of–could wreak plenty of damage in Afghanistan. Later that week students began making sandwiches for the relief workers, and collecting goods to donate to the relief effort.

From Staten Island, I could see the smoldering Ground Zero. It was surreal. The skyline looked so very empty. To this day, whenever I look at the Skyline, a sight I had seen thousands of times, I have the most bizarre feeling. Additionally, whenever we saw an airplane fly overhead, we all freaked out. This lasted for months.

For days, weeks, and months after 9/11, people in Staten Island were waiting for their loved ones to come home. Many patients were alive, but were so badly burned that they could not be identified. People prayed that these unnamed patients would soon come home. One woman whose husband was a firefighter waited outside her home every single night for months. She eventually put a candle in her window every night. Later, she put a memorial lamp in her window. He never came home. Others were simply waiting for remains of their loved ones to be returned. Many were never identified.

I ordered a gas mask from eBay, which I kept in my car, fearing a biological weapon attack on New York City. I remember I tried it on once and I almost suffocated. I wanted to order some Cipro for an anthrax attack, but I could not locate any.

It is hard to encapsulate what a New Yorker went through on 9/11. Thinking back on that day, when I was just 17 years old, I realized that I had to grow up awfully quick. It was a new world we were living in.

Never forget. Ever.

The post 9/11/2001 in Staten Island, New York appeared first on Reason Magazine.

The Supreme Law Without 9/11

2026-09-11T13:02:49Z

In my new Civitas Essay, I discussed how our present legal order stems from the events of 9/11.

Here, I will spin out a counterfactual: what would the legal order in 2026 look like if the terrorist attacks of 2001 had never happened? This compressed thought experiment will elucidate to the modern generation how significant 9/11 was to the very issues that define the Supreme Court today.

Counterfactuals are just that–--contrary to fact. Take everything I write here with two towers of salt.

Imagine that September 11, 2001 was a date like any other. Perhaps the dots were connected and the terrorist attacks were foiled. Or perhaps the plan fell apart when Saudi nationals were only interested in piloting jumbo jets and not landing them. Let's walk through three significant assumptions.

First, consider the 2002 midterms. In our reality, President Bush helped beat the historical odds, and his party gained seats in both houses. But in our hypothetical, Bush, who was not buoyed by a post 9/11 bounce, lost seats in both houses. Given that strong Democratic majority in the Senate, it is unlikely that John Roberts would have ever been confirmed to the D.C. Circuit. Likewise, many of Bush's strongest nominees likely would never have made it to the judiciary. The bench would have been much smaller for a future Supreme Court vacancy.

Second, incumbent presidents more-often-than-not win re-election. But without a war on terror, an unpopular Bush--elected by a razor thin majority--may have had a tough time pointing to legislative accomplishments. The parallels with his own father may have seemed clear enough. Indeed, there is common speculation about whether Bush would have won re-election without 9/11. Let's assume he didn't, and a Democrat--John Kerry, Al Gore, or someone else--won the White House in 2004. Chief Justice Rehnquist's cancer would have progressed, regardless of who was in the White House. His death in September 2005 was likely unavoidable. The bigger wildcard is whether Justice Sandra Day O'Connor would have still stepped down in June 2005 to take care of her husband's worsening dementia. O'Connor reportedly wanted to retire during a Republican Administration. Perhaps she would have wanted to make amends for her vote in Bush v. Gore, which was ridiculed by elites as partisan. Or, perhaps her duty to care for John O'Connor may have been too strong to keep her on the bench for another three years or longer.

Third, assuming that both O'Connor and Rehnquist left the bench in 2005, a Democratic President would have been able to flip the balance of the court for a generation. What was once a right-leaning 5-4 majority would have become a solid 6-3 liberal majority. Justices Antonin Scalia and Clarence Thomas would have been the only full-time conservatives, with Justice Anthony Kennedy likely finding more in common with the Court's left flank. There's more. With the benefit of hindsight, we know that Justice David Souter announced his retirement shortly after President Obama took the oath of office. Souter, who hated D.C., would likely have gladly stepped down in 2005 with a Democratic President. Justice John Paul Stevens, who would ultimately leave the Court in 2010, may have also moved on a few years earlier.

One could imagine that a Democratic president might have appointed Judge Sonia Sotomayor to fill Justice O'Connor's seat. For Chief Justice, the pick might have been Merrick Garland, who would come so tantalizingly close to the Supreme Court. Or jumping ahead a generation, Elean Kagan could have brought her leadership skills from Harvard Law School to the Supreme Court. Other possible nominees could have included Judge Diane Wood and Robert Katzmann. Then again, Republicans may have employed a judicial filibuster to block the Democratic takeover of the Supreme Court. In that case, I would have fully expected Senate Democrats to use the "nuclear" option a few years ahead of schedule.

In this alternate reality, the liberal 6-3 majority would have likely had four members under the age of fifty, while the conservative minority would have averaged nearly 70 years old. As conservative as the Supreme Court is today, this bizarro Supreme Court would be even more liberal. Decisions like Dobbs, Kennedy v. Bremerton School District, and Students for Fair Admission would have been unthinkable. Indeed, earlier rulings like District of Columbia v. Heller and even Free Enterprise Fund would never have happened. The unitary executive theory would never have escaped the academy.

The post The Supreme Law Without 9/11 appeared first on Reason Magazine.

New in Civitas Outlook: The Supreme Law: A Quarter Century after 9/11

2026-09-11T12:52:22Z

My new essay in Civitas Outlook tries to trace modern-day constitutional law to that fateful day twenty-five years ago.

Every generation has a defining moment. For my generation, it was September 11, 2001. But a quarter century later, more than 30 percent of Americans have no living memory of 9/11. The conflicts in Afghanistan and Iraq have wound down, Guantanamo Bay is mostly closed, and Ground Zero is a museum. Young law students, in particular, might even think that this historical event has no meaningful impact on the law today. Not quite. Indeed, but for September 11, 2001, and the events that followed, constitutional law likely would be unrecognizable today.

Perhaps the most salient connection concerns the Supreme Court's executive power decisions:

The seeds planted by Bush's nominations in 2005, and watered with Free Enterprise Fund in 2010, would begin to grow in 2020. In Seila Law LLC v. Consumer Financial Protection Bureau, Chief Justice Roberts, again writing for the Court, ruled that the president must be allowed to fire the single director of the important financial agency. Over the next six years, the Supreme Court would extend the doctrine in two landmark cases that reaffirmed the strength of executive power. Trump v. United States expanded the scope of presidential immunity from the Nixon era. And Trump v. Slaughter at last overruled Humphrey's Executor v. United States.

None of these cases were even thinkable in 2001, let alone in 2005 when Roberts and Alito were nominated to the Court. But a straight line can be drawn between the actions taken by Bush in the immediate aftermath of 9/11 and the elimination of the century-old Humphrey's Executor. Even though President Bush's terrorism policies would never succeed in court, the expansion of presidential power after 9/11, and the complementary judges that followed, helped solidify the unitary executive theory over the next quarter century. Indeed, these judges also effected a revolution in substantive due process with Dobbs, the Establishment Clause with Kennedy v. Bremerton School District, the Equal Protection Clause with Students for Fair Admission, and more. I've described this run of cases as the conservative equivalent of drawing a full house after six decades of folding.

It may be possible to forget 9/11 itself, but we can never forget the consequences of that day.

I would also commend Justice Kavanaugh's excellent interview in USA Today about 9/11:

The message Bush communicated to his staff Sept. 12 was: "This will not happen again. This will never happen again in the United States," Kavanaugh remembers.

"For him … every day was Sept. 12 for the next seven-plus years. Even when he was doing other things and doing all the things of government − economic negotiations, dealing with all the other issues in the world − he felt very responsible for making sure it never happened again," Kavanaugh said. "And if something did happen, they'd say, 'Bush, why didn't you prevent this?' It was a huge responsibility for him to carry."

. . .

Having seen 9/11 up close, the weight it placed on the president, and the ability of the country to recover gave Kavanaugh perspective when times get tough.

"People talk about: 'This is a crisis and that's a crisis. That was a crisis,'" he said. "America has lots of legal and policy debates, which are important. That's a different level than what I think we felt on the night of Sept. 11 and the morning of Sept. 12."

Kavanaugh gets it.

The post New in Civitas Outlook: The Supreme Law: A Quarter Century after 9/11 appeared first on Reason Magazine.

"The Why of Public Access to Judicial Records in Civil Cases"

2026-09-11T12:33:46Z

The ABA kindly allowed me to post it; it was originally published in Communications Lawyer. It answers a question that I've often seen asked, including in comments responding to some of my posts about the law of pseudonymity and sealing:

Why is it, after all, that the documents filed in all civil cases—including those in which now-irreconcilably-separated private parties ask a judge to divide their assets, craft shared parenting plans, and so on—should be readily available to nosey reporters or neighbors, and worse yet, have those sordid private facts posted online, worldwide, in perpetuity?

It answers this in detail, but here are a few key excerpts; read the whole thing for more:

Foremost in the justifications for openness of the judicial branch's operations, and the records that serve as the basis for its resolution of cases, is to "keep all of the players honest," allow the public to understand and respect both the process and the results, and to hold the decision-makers (judge and jury) accountable for their decisions. Openness guards against unfairness and inequity in the application of the law, as "the sure knowledge that anyone" may monitor the operation of the courts "gives assurance that established procedures are being followed and that deviations will become known.

But what makes all judicial records, both criminal and civil, presumptively open to public inspection? Why should the public be allowed to inspect court filings in routine, mundane cases like probate, trust and estates, employment, and domestic relations cases?

The simplest, shortest answer is "because, your Honor, this court, all of its personnel, all materials you consider, or are asked to consider, and the decisions you render, are paid for by We the People, and this court exercises its authority in our name, on our behalf, as our public servants."

One helpful summary of the reasons why there is a strong presumption of public access to "judicial records" in all cases (civil and criminal) appears in Public Access to Court Records: Guidelines for Development by State Courts, which the Conference of State Court Administrators adopted in August 2002:

The role of the judiciary is to resolve disputes, between private parties or between an individual or entity and the government, according to a set of rules…. [H]aving the process and result open to the public serves a societal interest in having a set of stable, predictable rules governing behavior and conduct. [Openness] furthers the goal of providing public education about the results in cases and the evidence supporting them…. [Indeed, t]he decision of the court stating what the rights and obligations of the parties is as important to the public as to the litigants….

©2026. Published in Communications Lawyer, Vol. 41, No. 1, Winter 2026, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The post "The Why of Public Access to Judicial Records in Civil Cases" appeared first on Reason Magazine.

President Trump Is Bold, Brave, and Right on the Iran War

2026-09-11T14:20:41Z

Iran has been a mortal enemy of the United States in the 47 years since its Islamic Revolution of 1979. The Ayatollah Ruhollah Khomeini began his theocratic dictatorship by imprisoning 52 Americans including the U.S. Ambassador to Iran from November 4, 1979, until President Reagan took office at noon on January 20, 1981. The Ayatollah Khomeini repeatedly led crowds in chants of "Death to America," which he called the "Great Satan." Chants of "Death to America" and America is the "Great Satan" have been made repeatedly down to the present day by all of Khomeini's successors. Iran has financed proxies like Hezbollah, Hamas, and the Houthis in Yemen who have attacked American allies in the Middle East and who are trying to export Iran's theocratic revolution to Saudi Arabia and Palestine, while closing both the Strait of Hormuz, in the Persian Gulf, and the Strait of Bab-El Mandeb, in the Red Sea, to international maritime oil and natural gas trading thus causing a global economic crisis.

There is an appreciable and unacceptable possibility that if Iran had a nuclear bomb, it would first use it on Israel and then on the United States. Although the atheistic Soviet Union and Red China have been deterred by fear of a U.S. nuclear counterstrike, the theocrats who rule Tehran might not be. They might think that all who die in a jihad holy war to spread Shiite Islam would go straight to heaven. If Iran lacked an intercontinental ballistic missile that could penetrate U.S. air defenses, it might put such bombs on boats, sail them to the harbors of New York City and San Francisco, and detonate them in those U.S. harbors, massacring millions of American civilians.

Six U.S. Presidents since 1979—Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden—have done nothing meaningful to curtail Iran's ambition to destroy what it sees as the U.S.'s atheistic and materialistic culture. None of them have treated Iran as the mortal and dangerous enemy that it is. Like the French democracy in the 1930's, which failed effectively to deal with Adolf Hitler building up the Nazi military that would crush the French army and conquer France in 1940, Americans for 47 years have ignored Iran's desire to bring death and destruction to our shores by building nuclear bombs.

Iran is zealously determined not just to wrest back control of neighboring countries, as Russia is with Ukraine, and China is with Taiwan (dangerous as both those countries' ambitions are): Iran also wants to destroy the United States and all that it stands for. While Iran is less powerful than China and Russia, with their nuclear missiles, it is more committed than those two powers to destroying completely the ideas of religious tolerance, the rights of women and gays and lesbians, and our national creed that "All human beings are born free and equal."

Iran is a revolutionary theocracy that wants to pave the way to an entirely Shiite Islamic World. China and Russia in 2026 do not have a moral program about how all people everywhere ought to live in the way that Iran has such a moral program. Iran's goal of Shiite Islam über alles is shown by the Ayatollah Ruhollah Khomeini's 1989 fatwa calling on all Muslims everywhere to kill Salman Rushdie, the author of the book The Satanic Verses—a fatwa that the second Ayatollah of Iran, Ali Khamenei, reiterated in 2017. An attempted assassination in 2022 in Chautauqua, New York, on U.S. soil, left Rushdie blinded in one eye for writing a book that some jihadists saw as disrespectful of the Koran (though others thought its criticisms of Islam to be sound).

Some Americans naively think, as President Obama apparently did, that Iran can be bought off if we would just abandon our alliance with Israel. Other Americans like President George W. Bush's Secretary of State from 2005 to 2009, Condoleezza Rice, just thought at that time that fighting a war with Iran would be hard, dangerous, and unpopular. They followed the lead of non-interventionist isolationists. Happily, today Rice has supported President Trump's war against Iran.

Many Americans, including me, think that the U.S. has spent too much money, and killed too many people, in wars that we should never have fought like the foolish efforts to turn Islamic Afghanistan into a western democracy over 20 years. Others remain justifiably furious about George W. Bush's foolish bipartisan war, supported by Sen. Hillary Clinton, to overthrow Sadam Hussein's Iraq, a regime that was already crippled after Americans had won the Kuwait War in 1991. Older Americans still remember the foolish effort to win the Vietnam War when North Vietnam, like Iraq, posed no existential threat to the United States or to western democracy. 58,281 Americans were killed in the Vietnam War; 153,372 Americans were wounded.

But what President Trump knows, and what a 60% majority of the American people regrettably do not fully grasp, is that Iran is our mortal enemy—it is committed to regime change in the United States unlike Afghanistan, Iraq, or North Vietnam. When the Ayatollah Ruhollah Khomeini established the Islamic Republic in 1979, his new constitution explicitly cited the goal of "exporting the revolution." Khomeini viewed the Iranian model as a universal blueprint for oppressed Muslims worldwide to overthrow Western imperialism and corrupt local regimes. In this theoretical sense, the ideology is pan-Islamic and global. Iran is a revolutionary theocracy much as were Vladimir Lenin's Soviet Union 100 years ago or Mao Ze Dong's China 76 years ago, and Iran wants at a minimum to export its revolution all over the Middle East.

President Trump wisely bombed Iran's nuclear facilities in June 2025 in the Twelve Day War, but it had become clear by the winter of 2026 that Iran had restarted its nuclear program. Prior to the February 28, 2026 U.S. and Israeli strikes, Trump administration envoy Steve Witkoff stated Iran was "probably a week away" from industrial-grade bomb-making material, and President Donald Trump later estimated Iran was "two weeks away" from obtaining a nuclear weapon.

President Trump faced the hardest and bravest decision of his life and of his two terms as President in February of 2026. Should he use the military to destroy Iran's nuclear program, which would be wildly unpopular in the wake of President George W. Bush's failed wars in Afghanistan and Iraq? Or should President Trump follow the advice of almost all his top advisors and do nothing, and leave to his successor, elected in 2028, a nuclear armed "Death to America" regime that views us as the "Great Satan"?

Young advisors like the naïve and inexperienced Vice President, J.D. Vance, the Director of National Intelligence, Tulsi Gabbard, and most of the top generals in the Department of War took the wrong, over-cautious view. They quite rightly said that going to war to prevent Iran from acquiring nuclear bombs would be hard, dangerous, and unpopular work. Iran would close the Strait of Hormuz, oil and natural gas prices would rise, and the world's economy, including the U.S. economy, would take a hit. Such a war would be unpredictable, and our European allies would fecklessly decline to help. We would run out of weapons because stockpiles in the U.S. were dangerously low. The war would not be a quick victory like the kidnapping of Venezuelan Dictator Nicolas Maduro; it would instead drag on. Trump might even lose the 2026 midterm elections or fail to keep the presidency in Republican hands in 2028. The American people would never understand why war with Iran was necessary when the Afghan and Iraq Wars were not.

President Trump weighed his options, and he bravely chose to go to war in an intelligent way in which American casualties would be very limited. Trump launched a knock-out strike on February 28, 2026, that decapitated the Iranian leadership—civilian, theocratic, and military—in a bombing that killed the Supreme Iranian leader (the Ayatollah Ali Khamenei), an avowed enemy of the U.S. President Trump deployed three aircraft carrier groups, huge numbers of marines, and all the conventional weapons of the U.S. military against Iran. President Trump deployed the U.S. Navy to blockade successfully all Iranian oil and gas shipments, a move which is likely costing Iran over $400 million a day. Iran has not closed the Strait of Hormuz to all shipping of oil according to the Institute for the Study of War, but President Trump has closed the Strait of Hormuz to all shipping of Iranian oil.

After five months of war, Iran is further away from building a nuclear bomb than it has been in some time, its economy has been absolutely crushed, its entire Navy has been sunk, its Air Force has been obliterated, and its enormous stockpiles, hidden under ground, of ballistic missiles have been over 90% obliterated. There is major civil unrest in southern Iran, and Kurdish "freedom fighters" are striving for a free Kurdistan in northwest Iran, which they richly deserve.

The new Ayatollah, Mojtaba Khamenei, the son of the late Ayatollah, may well be dead; if he's alive, he's afraid to appear in public, to speak in video or audio recordings, or to talk to the President of Iran and his cabinet. The ultra-authoritarian theocratic Iranian Revolutionary Guard Corps (IRGC) runs the country aware that it is hated by 81% of the Iranian people. The Iranian economy is in free fall with hyper-inflation, acute shortages of food and medicine, and even a drought that is causing the President of Iran to say that all nine million residents of Tehran, might need to evacuate the capital city of Iran if there is not more rainfall. Life is going very, very badly for the Iranian theocrats right now.

Congressional Democrats and the news media led by the New York Times have been much in the wrong on this. Some people seem to me to be openly rooting for Iran to win, and they talk endlessly about how long it is taking to subdue a country of 92 million people halfway across the globe. Congressional Democrats have repeatedly used the unconstitutional War Powers Act to try to shut down the war, while offering no good ideas of their own as to how to prevent Iran from someday nuking the United States. President Trump has been steadfast and brave in continuing his war on Iran in the face of these U.S. critics and notwithstanding the lack of American public support.

Iran ranks 17th out of 240 nations in the world both in geographic size and in population. Moreover, the United States has deliberately decided to save American lives by having no troops on the ground, and it is still whipping the daylights out of Iran just with just our Navy, Air Force, and Space Force. As of now, only 18 American soldiers have died, and 808 have been wounded wounded. In contrast, casualties in the 20 yearlong Afghan War were 1,922 killed and an additional 20,769 wounded. Casualties in George W. Bush's failed Iraq War were 4,492 killed and 32,292 wounded. President Trump has won a great deal, while losing very little.

At the moment, opponents of the war have persuaded 60% of Americans to oppose U.S. involvement in the Iran War even though (1) Iran is an even more mortal enemy of the U.S. than are China and Russia, (2) we are clearly winning the war, and it is only a matter of time before all resistance collapses, (3) our armed forces are at very little risk and have suffered very few casualties, and (4) 80% of the Iranian people hate their own government.

In the long term, the IRGC regime will collapse, and the U.S. will be able to work with a new Iranian government to greatly expand Iranian oil and gas exports, as we are now doing in post-Maduro Venezuela, which will lower long term energy prices. In the meantime, we need to be patient and wait. We should all be very grateful for President Trump's boldness, bravery, and steadfastness with respect to this war.

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Politicians See Opportunity in Data Center Panic

2026-09-11T11:30:05Z

Politicians generally operate within their partisan bubbles, as they stake out poll-tested positions that conform to the political lean of their districts and the priorities of their party. Once in a while, though, an issue so upsets the public that it transcends partisanship. Then all bets are off, as lawmakers try desperately to placate those proverbial "peasants with pitchforks."

The latest example involves the construction of data centers. Voters, and hence politicians on the political left and right, are incensed about the construction of large facilities that house computers, networking equipment, servers, and storage systems that support the tech economy and the growth in Artificial Intelligence (AI). It's hard to understand the level of upset given that these facilities are necessary to power industries that power our economy and fund state budgets.

I grew up in Pennsylvania in the 1970s, where the hulks of the industrial revolution—giant steel mills, oil refineries, and clanking, pollution-spewing factories—loomed over our communities. By contrast, these clean, low-slung and quiet facilities, although large, are generally tucked away in tidy industrial parks near freeways and away from our neighborhoods. If we want to have easy access to computer innovations, then we need to make peace with these less-intrusive facilities.

Yet a Gallup Poll from May found "53% of Americans say they oppose building a nuclear energy plant in their area, far less than the 71% opposed to data center construction." I live near the cooling towers of Rancho Seco, which was shuttered in 1989 after a referendum. Protests against that nuclear plant started in the late 1970s following the Three Mile Island accident. I was sent home from a nearby Pennsylvania college after that fiasco, so it astounds me that people are more fearful of benign data centers than radioactive fallout.

But data-center concerns are so severe that they've affected Democratic primaries in the upper Midwest. In Texas—where pouring concrete to build freeways, constructing massive natural-gas pipelines and digging oil wells is a great source of local pride—Republican Gov. Greg Abbott last month ordered an audit of hundreds of proposed data centers, thus imposing new regulatory hurdles that will delay and perhaps stop some of them. It's in response to angry residents, who have shown up in droves at city council and planning commission meetings.

In the San Francisco Bay Area, local governments have approved some of these centers with relatively little pushback because residents there understand their necessity for bolstering jobs and the economy. But the state Legislature passed Senate Bill 886, which "requires the California Public Utilities Commission (CPUC) to establish tariffs that address costs associated with transmission, distribution, generation, and interconnection services for data centers." Supporters argue that it's necessary to keep these centers from boosting rates for other consumers.

That's a load of malarkey. The Electric Power Research Institute found data centers generally decrease retail power rates by 4 percent for a reason that should be obvious to anyone who follows the electrical-generation issue. Namely, electric utilities have massive fixed costs (electrical lines, generators, etc.) that are spread across the base of existing customers. As more customers leave the grid to install solar, that raises rates for remaining customers. Data centers assume a larger portion of those costs, which takes some pressure off of residential and commercial consumers.

Critics also worry about data-center water usage to cool the servers, but that, too, is misleading. Data centers can use as much water as a small city, but they increasingly rely on recycled water and closed-loop water systems that result in minimal water loss. Data centers withdraw around 0.4 percent of the nation's water supplies, which is a pittance compared to agriculture. The best solution is for states to start doing what they've neglected: building the water infrastructure necessary to maintain a growing economy.

Construction of any new facilities can trigger siting and community issues, so data centers are no exception. But these are mostly local zoning matters. City councils have plenty of experience dealing with traffic, noise, and light issues. No one seemed to care, for instance, about a giant distribution facility and warehouse built in an industrial park in my city. A data center isn't much different, so what's going on here?

"It sure is easy raking in billions when you're living in your own protected Bay Area bubble, where your physical business and employees are distant from the people/customers feeding you," wrote Republican consultant Keith Naughton in The Hill this week. "It's a whole different ballgame when you encounter the unwashed masses and need their approval."

In other words, the data-center hysteria is channeling the public's inchoate fears about the rapid expansion of AI and is a flash point for anger at tech moguls and billionaires. That seems silly. But if that is upsetting voters, then you can be sure politicians will eagerly take advantage of their angst.

This column was first published in The Orange County Register.

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Today in Supreme Court History: September 11, 1958

2026-09-11T11:00:34Z

9/11/1958: Cooper v. Aaron is argued.

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How the War on Terror Turned 9/11 Into a Permanently Open Wound

2026-09-11T16:22:32Z

The first murder I witnessed was at age 3, on September 11, 2001. Although I was too young to fully grasp what the burning towers across the Hudson River meant, I soon came to understand that many families around us had lost someone forever. (I later learned that, like many other New Yorkers, my aunt barely missed becoming one of the victims by being late to work.) And I heard that a stranger from a strange land named "Osama bin Laden" was responsible.

A little under a decade later, the U.S. government announced that it had killed bin Laden, to the jubilation of my middle school classmates. But the end of bin Laden did not bring the relief that Americans were hoping for. President Barack Obama was quick to warn the public that "his death does not mark the end of our effort." In fact, the worst of the war on terror was yet to come.

The U.S. military continues to use Congress' authorization for war on Al Qaeda to go after a dizzying array of enemies. Despite several accused perpetrators sitting in the U.S. military prison at Guantánamo Bay, there has never been a "9/11 trial." A quarter century later, 9/11 still feels like an open, festering wound in American society, with neither closure nor justice served.

That is by design. Instead of treating the massacre of American civilians as a criminal matter, the U.S. government took it as an opportunity to radically expand its own power, imposing a permanent state of emergency at home and waging war to reshape the Middle East. Those wars were often against targets that had little or nothing to do with 9/11, requiring the government to confuse and misdirect the public.

For all the murderous sophistication of the plane hijackings, the network behind them was fairly easy to unmask and capture, partly because the U.S. government had already started to surveil Al Qaeda. But the administration of George W. Bush did not hand them over to law enforcement professionals who could secure swift convictions. Instead, the Bush administration experimented with new legal categories ("enemy combatants") to deprive the suspects of rights, a new infrastructure of secret prisons to hide them from view, and new torture tactics to test on them.

The system scrambled innocence and guilt. While bystanders like Murat Kurnaz and Mohamedou Ould Slahi were disappeared and permanently scarred through no fault of their own, admitted 9/11 conspirators like Khalid Sheikh Mohammed (KSM) have gone decades without being judged by a court. When Obama tried in 2011 to put KSM before a civilian court near the scene of his crime, a process that might give New Yorkers some closure, hawks in Congress blocked the trial. Fifteen years later, the military tribunal trying KSM is still working to sort out genuine evidence from forced confessions under torture.

No wonder Obama's advisers worked from the assumption that they would kill, not capture, bin Laden. The raid on bin Laden was being planned at the same time as the legal headache around the planned KSM trial was unfolding, which clearly weighed on U.S. planners.

Sure, torture might have been incompatible with the peacetime justice system, proponents argue, but it was a necessary emergency measure to find further attackers. Congressional investigators with access to secret CIA records tested this argument and found that torture produced only "faulty intelligence." Perhaps another explanation is needed.

FBI agent Ali Soufan, who was one of the earliest agents sent to hunt Al Qaeda and later came out as an opponent of torture, writes that the CIA aimed to make a suspect "see his interrogator as a god who controls his suffering." The Bush administration exhibited the same megalomaniacal attitude toward the entire world. As an administration official infamously told The New York Times, "We're an empire now, and when we act, we create our own reality…and you, all of you, will be left to just study what we do."

Although the mass murderers of Al Qaeda (and people unlucky enough to be mistaken for them) made for a politically palatable target, the appetite of the administration was bigger yet. Their real goal was, in the approving words of New York Times journalist Thomas Friedman, to tell the entire Muslim world to "suck on this." Or, in a turn of phrase that the National Review attributed to neoconservative scholar Michael Ledeen, "Every ten years or so, the United States needs to pick up some small crappy little country and throw it against the wall, just to show the world we mean business."

The neoconservative moment was happy to provide a list of "crappy little countries" to pick on. The Project for the New American Century was already pushing to finish off Iraqi dictator Saddam Hussein, whom the U.S. had defeated and isolated in the Persian Gulf War of 1991. A Clean Break, a policy paper written by American neoconservatives for Israeli Prime Minister Benjamin Netanyahu in 1999, suggested pairing Iraqi regime change with a containment campaign against Iran and Syria. Members of the Project for the New American Century and authors of A Clean Break ended up staffing the Bush administration.

There was a wrinkle: None of the neoconservatives' targets actually had anything to do with 9/11. So they just lied to the public. U.S. officials spread conspiracy theories about Iraq maintaining ties to Al Qaeda while hiding "weapons of mass destruction." National Security Adviser Condoleezza Rice implied that the next 9/11 would come in the form of a "mushroom cloud." The greatest conspiracy theory of them all, cooked up by speechwriter David Frum, posited that a global "axis of evil" was plotting to build nuclear weapons and give them to terrorists.

Bush named Iraq, Iran, and North Korea as members of that axis. His adviser Douglas Feith, a former member of the Project for the New American Century and a co-author of A Clean Break, even wrote a memo suggesting that "an American attack in South America or Southeast Asia might be a surprise to the terrorists." Indeed it would be.

In reality, the governments of Iraq, Iran, and Syria all considered Al Qaeda a menace. Bin Laden himself had offered to join the 1991 war against Iraq, which he then saw as an aggressor threatening his native Saudi Arabia. Iran, which had almost gone to war with bin Laden's hosts in Afghanistan in the 1990s, held public vigils for 9/11 victims. Iranian intelligence services later cooperated with the U.S. invasion of Afghanistan. Syria became another covert partner in the war on terror. "If you want [suspects] to be tortured, you send them to Syria," former CIA officer Robert Baer once said.

In 2006, the sitcom It's Always Sunny in Philadelphia parodied Americans' confused understanding of the situation: "There's a war on terror, Charlie. Have you ever seen CNN? George Bush, right now. Saddam Hussein has the oil. We have decided to help the people of Israel to give our oil back to us by defeating Saddam Hussein." But for those of us living in the direct shadow of 9/11, it wasn't so funny.

At a time when U.S. leaders could and should have been reassuring a traumatized nation, and directing Americans' righteous anger at the proper targets, they instead mired the public in confusion, secrecy, and paranoia. By expanding the war on terror's enemy from Al Qaeda to an amorphous global conspiracy, the Bush administration made the public's fears impossible to ever satisfy. You can't conclusively defeat an enemy that doesn't exist.

The war in Iraq ultimately killed more Americans than 9/11 did, not to mention hundreds of thousands of Iraqis. It also empowered Al Qaeda, which settled in war-torn Iraq and metastasized like a cancer, hijacking the wave of 2011 revolutions across the Middle East. Meanwhile, the U.S. military inserted itself into conflicts throughout the world, labeling groups that didn't exist in 2001 as Al Qaeda's "associated forces," a tradition that Obama and his successors would continue.

These wars eventually led to neoconservatives winning their grand prize, a war with Iran. The U.S. occupation of Iraq and later campaign against the Islamic State group, a splinter from Al Qaeda, created plenty of friction with Iranian and Iranian-backed forces. In 2020, the first Trump administration assassinated an Iranian general in the name of protecting U.S. forces in Iraq, and in 2026, the second Trump administration attacked Iran in large part to avenge U.S. forces killed by Iraqi guerrillas backed by Iran.

The fight against Al Qaeda seems to have taken a back seat, and the U.S. government has even turned a blind eye to Al Qaeda in the name of fighting Iran. Saudi Arabia, a state whose intelligence services actually have unexplained ties to 9/11, invaded Yemen to put down an Iranian-backed revolution in 2015. The Saudi-led coalition fought alongside Al Qaeda, and received heavy U.S. support nonetheless.

During the Syrian civil war, Gen. David Petraeus and Ambassador James Jeffrey flirted with the idea of fighting U.S. enemies with the help of Al Qaeda's Syrian branch, whose leader Ahmad Al-Sharaa celebrated 9/11 as revenge for "the injustice of the Americans." Improbably, that bet ended up paying off. Al-Sharaa forcefully split his forces from Al Qaeda, took over Syria in 2024, and installed a U.S.-friendly regime. Washington has so far reciprocated his outreach. The original sin of the war on terror—allying with 9/11's perpetrators—seems to be more forgivable than other vendettas in the eyes of the U.S. government.

Israel, once a minor actor in U.S. foreign policy, has become a new lodestar of the war on terror. Some politicians are trying to displace Americans' trauma from 9/11 onto Israelis' much older conflict with their Palestinian neighbors. President Joe Biden described the October 2023 attacks on Israel, which killed fewer people than 9/11, as the equivalent of "fifteen 9/11s." Netanyahu called it the equivalent of twenty 9/11s in a 2024 speech to Congress, to roaring applause.

Ambassador Mike Huckabee, the current U.S. envoy to Israel, gave an interview to Newsmax on Tuesday about the legacy of 9/11. "I hope we never forget what happened on that day, and I don't want us to forget who did it, because when people in America say what about Iran, we don't care—well, Iran didn't directly participate, but they're part of this jihadist system," he said.

The flippancy with which Biden and Huckabee talked about 9/11 and its victims is staggering. So is the lack of reaction to such rhetoric, which only shows how cheapened the memory of 9/11 has become in American political culture—by exactly the people who constantly invoke it. And the situation has been this way for a while. Confronted in 2014 with evidence that the CIA tortured innocent people, former Vice President Dick Cheney lashed out with a graphic description of a hypothetical worker burning to death in the Twin Towers.

When the younger generation cracks distasteful jokes about 9/11, they are reflecting the cynicism from politicians and talking heads that has become their only frame of reference for this event.

Could the war on terror have gone any other way? Hindsight, of course, is always 20/20, and some errors of the post-9/11 era were understandable excesses. (A former Baltimore deputy police commissioner reminded me that officials at the time had to assume "that 9/11 was the first of many [attacks] to come.") But the Bush administration actively chose to use 9/11 victims as fodder for its world-building project, and its successors chose to stay the course, on a bipartisan basis.

A quarter century later, I have met many people in the Middle East who saw parts of their own cities leveled by bombs. I cannot help thinking back to the smoke over the Hudson River. What is it like to grow up around a building blown up every day, instead of just once? And I cannot help wondering whether this whole mess could have been put to rest so much earlier.

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Review: An Alternate History of Soviet Space Exploration

2026-09-11T10:00:21Z

What happens when a space program isn't guided by science but by government paranoia?

Star City (Apple TV) shows viewers how that might have played out. Set in the same universe as the show For All Mankind, it offers a timeline where the Soviets have gotten to the Moon first. The Soviet space program's chief designer just wants to send Russians farther and farther into the cosmos, but the KGB prefers to build a space station to spy on Americans. The KGB—despite not knowing "the difference between liquid nitrogen and vodka"—wins.

"Who knows where that might have led us?" a scientist says of the exploration plan. "Now all we're doing is looking down."

KGB orders often put cosmonauts at risk. The power dynamic between the KGB and mission-focused scientists may be exaggerated for TV, but we know the horrors of the Soviet surveillance state were all too real.

When someone in the show is suspected of spying for the Americans, a fresh-faced KGB operative finds evidence of her innocence. But the suspect is executed anyway. "We do not arrest the innocent, comrade," the rookie operative is told. "Our power depends on it."

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Brickbat: XX Marks the Spot

2026-09-11T08:00:00Z

A federal appeals court ruled in favor of four Bow, New Hampshire, parents who said their First Amendment rights were violated after they wore pink "XX" wristbands at a girls' soccer game to protest transgender athletes competing in girls' sports. School officials accused the parents of harassing, intimidating, and threatening a player on the other team. Two of the parents also received no-trespass orders banning them from school property. When the parents refused to remove the wristbands, the school stopped the game and had police escort them away. The parents sued, arguing they were peacefully expressing their views. A lower court initially sided with the school district, but the First Circuit Court of Appeals overturned that decision and send it back to a lower court. The appeals court ruled that the parents' silent display of the wristbands did not amount to harassment or disruption and that the school had improperly punished them for the viewpoint they expressed.

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Open Thread

2026-09-11T07:00:00Z

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The Contempt Judgment From Missouri

2026-09-11T02:54:51Z

The wild ride in Missouri continues. Around the same time that the United States Supreme Court stayed Judge Clark's ruling, the Missouri Supreme Court held an emergency hearing about whether Secretary of State Denny Hoskins should be held in contempt. By that time, because Judge Clark's ruling was stayed by the Supreme Court, Hoskins was no longer subject to dueling injunctions, and thus agreed to enforce the 2022 maps. Ultimately, the court ruled that Hoskins "purged himself" of contempt, and therefore imposed no punishment.

Yet, for a period of about 16 hours, the Secretary of State was subject to two sets of injunctions. The Missouri Supreme Court ordered him to use the 2022 maps. And the U.S. District Court for the Eastern District of Missouri ordered him to use the 2026 maps. Which of these two courts prevails? Neither. They are both courts of competent jurisdiction that issued binding orders. One is not higher than the other. Indeed, conflicting rulings from the Missouri Supreme Court and the Eighth Circuit would present the same issue. Hoskins, if push came to shove, would have to choose which judgment he wishes to comply with. But that choice entails costs. If he complied with the state court ruling, Judge Clark could have held him in contempt. If he complied with the federal court ruling, the Missouri Supreme Court could have held him contempt.

Under these very unusual circumstances, the Supreme Court in the span of 48 hours declined to disturb the state court ruling and stayed the federal court ruling, so Hoskins got some definitive guidance from up to. But in the normal course, these sorts of dueling injunctions would co-exist for days, weeks, or even longer.

This sort of dynamic played out in Alabama during the same-sex marriage litigation. State probate judges who issued our marriage licenses were subject to conflicting orders from a federal judge in Mobile and the Alabama Supreme Court. Ultimately, Obergefell settled the matter, but in the interim, the state probate judges had to pick which court might threaten them with contempt.

Howard Wasserman and I explained the dynamics in our 2016 article:

While the days immediately following Obergefell were marked by scattered attempts by some probate judges to avoid issuing licenses to same-sex couples or to avoid issuing licenses at all, the now effective class injunction quickly ended those efforts by ensuring compliance without need for that additional step. A couple denied a license by a probate judge would not have to initiate a new lawsuit or obtain a new injunction. They instead could go directly to [Federal] Judge Granade for an order enforcing the existing injunction, with no further constitutional analysis required. The court would promptly order the probate judge to issue licenses under the terms of the injunction, with failure to comply sanctioned by civil contempt.

The Missouri Supreme Court probably should have waited until the Supreme Court ruled before it set oral argument for contempt proceedings. I hope cooler heads prevail in the Show-Me state. Things are a bit too hot right now.

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Marijuana Contracts Are Not Enforceable in Federal Court

2026-09-11T17:56:05Z

Two-dozen states have legalized the adult possession of marijuana under state law. Many more have legalized the possession and use of marijuana for medicinal purposes. Yet marijuana distribution and possession remain illegal under federal law.

The federal government may not devote significant resources toward enforcing federal marijuana prohibition, but the fact that marijuana is illegal under federal law can still have meaningful consequences (though fewer for gun owners than before, thanks to the Supreme Court's decision in United States v. Hemani).

A case in point that federal marijuana prohibition can have legal significance is today's decision by the U.S. Court of Appeals for the Sixth Circuit in Hello Farms Marketing MI v. GR Vending MI, holding that a marijuana contract is unenforceable in federal court given the illegal subject matter and throwing out a contrary district court ruling.

Judge Nalbandian summarizes the case in his opinion for the court:

Hello Farms, a Michigan marijuana grower, entered a contract to supply marijuana to Defendants GR Vending and CURA MI. When GR Vending breached, Hello Farms sued. And a jury awarded Hello Farms $31.8 million. Defendants argue that because the contract was illegal under federal law, the district court erred by not granting them judgment as a matter of law on their illegality defense.

When the parties contracted, federal law made the growth, distribution, and possession of marijuana a crime. Michigan, like many other states, made it a business. But despite the legalization of marijuana in Michigan, federal courts cannot enforce agreements to commit federal crimes. We reverse.

This case underscores a point I have tried to make in my work on this subject (including in my book Marijuana Federalism: Uncle Sam and Mary Jane): If we want to have real marijuana federalism, in which states can experiment productively with different approaches to marijuana, it is not enough for the federal government to do nothing. It must make state experimentation legal, such as by ending the criminalization of conduct that is legal under applicable state law (while continuing to prohibit conduct that is illegal under applicable state law, including interstate trafficking in violation of the such laws). This was the federal government's approach to alcohol at the end of prohibition, and it is the only way to have a marijuana federalism that is free of the distorting effects of federal prohibition.

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Why Postliberalism Failed--And Is Likely to Fail Again

2026-09-11T02:22:03Z

Today Civitas Outlook published a mini-symposium responding to the new book, Why Postliberalism Failed by James Patterson and Thomas Howes. Contributors include Richard Reinsch, David Schaefer. and yours truly.

My own contribution to the symposium, "The Pre-History of Postliberalism," explains how the postliberal critique of the American political tradition and American conservatism is not new, nor are the theoretical claims upon which it relies. As Patterson and Howes point out, the underlying ideas have been deployed before--and to quite ill effect--in other countries. As I add, these ideas have had adherents on the American right before, and they should be no more convincing today than they were then.

From my essay:

A conservative disposition is rarely conducive to contentment with contemporary politics. The existing order is always threatened by chaos and decay. So it is understandable why some may find the postliberal critique engaging, and perhaps even refreshingly transgressive. Yet aside from the political moment in which it is put forth, there is little in this critique of classical liberalism, the fusionist consensus, or the American project which is particularly new. Whether recognized by its adherents or not, the postliberal indictment rehashes arguments and propositions made many times before and proposes a model of governance that has never delivered the moral state its proponents claim it seeks. This ground is well-trod, but not to good effect.

In Why Postliberalism Failed, James M. Patterson and Thomas D. Howes usefully dissect and expose the postliberal project, particularly as it has manifested itself within the Catholic political tradition, including Catholic integralism. The result is an ideology less concerned with the preservation of traditional religious communities than with harnessing "a powerful, centralized government imposing from the top down a theologically-informed vision of the public good on all national subjects regardless of their faith." It is, Patterson and Howes note, "authoritarianism dressed up in Catholic vestments."

Perhaps most valuably, they show how the ideas embraced by postliberal thinkers are not new, have been tried before, and have ended in failure. There were multiple, Catholic-oriented postliberal regimes in the twentieth century, and all were nasty, brutish, and short. None yielded a sustainable or workable—let alone desirable—polity. Whether in Portugal, Brazil, Argentina, Austria, Slovakia, or Vichy France, Catholic-aligned postliberal regimes all ended in failure, often leaving oppression, misery, and death in their wakes. . . .

Much of the postliberal indictment of American conservatism—if not the tactical agenda—echoes arguments debated within the conservative movement in the late 1960s and early 1970s, largely (but not exclusively) at the Philadelphia Society and in the pages of National Review. . . .

America is fortunate that advocates of postliberalism failed to find a following here. While some sought to import a reactionary European conservatism to these shores, they failed to dislodge the fusionist consensus that has defined the American conservative movement since World War II—a consensus committed to individual liberty and traditional morality within a constitutional order that limits and decentralizes government power. . . .

My essay concludes:

As Archbishop Salvatore Joseph Cordileone notes in his foreword to Why Postliberalism Fails, "A fantasized idealism of the past that would reassert such ideas is not a sign of originality, but of historical amnesia." In that regard, contemporary postliberalism is perhaps a fitting ideology for the age—but that hardly makes its agenda a good one, let alone an American one.

All three contributions may be found here.

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Geof Stone and I on "The State of Free Speech in 2026" (from the National Constitution Center)

2026-09-10T21:53:05Z

I much enjoyed participating in this, and I expect many of our readers will much enjoy listening to it.

The post Geof Stone and I on "The State of Free Speech in 2026" (from the National Constitution Center) appeared first on Reason Magazine.

First Circuit Refuses to Stay District Court Injunction Against Trump's Executive Order on Mail-In Voting

2026-09-10T21:28:02Z

I recently wrote about how Donald Trump's executive order seeking to curb mail-in voting is an attack on federalism and separation of powers. The Constitution gives states primary authority over election administration, subject to potential modification by congressional legislation. Today, in League of Women Voters v. Trump, a unanimous panel of the US Court of Appeals for the First Circuit rejected the Trump Administration's motion to stay the trial court injunction blocking implementation of the US Postal Service rule implementing Trump's order. Here is a key excerpt from the ruling:

Appellants have not demonstrated entitlement to a stay. Most prominently, appellants
have not made a strong showing that the district court erred in determining that the Final Rule is likely unlawful. The district court concluded, and we agree, that the Final Rule is likely a regulation of the manner of holding elections for members of Congress, which the Elections Clause of the Constitution assigns to the States and Congress, and not to an executive agency, such as the Postal Service, acting without congressional authorization.2 See U.S. Const. art. I, § 4, cl. Appellants seek to avoid the constitutional problem by denying that the Final Rule regulates the manner of holding elections. The district court charitably concluded that "[t]his denial rings hollow." League of Women Voters of Mass. v. Trump, Nos. 26-cv-11549, 26-cv-13917, 2026 WL 2620871, at *14 (D. Mass. Sep. 4, 2026). The title of the Final Rule is "Ballot Mail for Federal Elections," and the Final Rule explicitly and exclusively regulates election mail. 91 Fed. Reg. at 54966, 54990-92. It requires action by the States' "chief election official[s]" and its policy justification is "protect[ing] the integrity of federal elections…."

To the extent that appellants argue that we should read statutes authorizing the Postal
Service to issue general postal regulations as supplying the necessary congressional authorization for the Final Rule, see 39 U.S.C. § 401(2) (authorizing USPS to make "such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions"); id. § 401(10) (authorizing USPS to exercise "all other powers incidental, necessary, or appropriate to the carrying on of its functions or the exercise of its specific powers"); id. § 404(a)(1) (conferring on USPS the power "to provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail, and for the disposition of undeliverable mail"), their argument likely fails. Appellants have not convinced us that it is likely that Congress would delegate constitutionally assigned tasks relevant to maintaining our electoral system to the Postal Service through the "wafer-thin reed" of a general grant of authority to manage the postal system. Biden v. Nebraska, 600 U.S. 477, 499 (2023). As appellees point out, Congress historically has been explicit in its exercise of authority under the Elections Clause when it seeks to displace the background assumption that the States will act as the primary regulator of elections. The general authority on which appellants rely here is far removed from that sort of specific congressional action.

I think this is exactly right. And it's notable the court cited the major questions doctrine case of Biden v. Nebraska, which rightly rejected President Biden's effort to use vague statutory language as a tool for forgiving hundreds of billions of dollars in federal student loan debt. As explained in my earlier post on this issue, and by the district court, Trump's claim to be able to use the Postal Service authorization law to leverage massive changes in state mail-in ballot rules also creates a major questions issue, as control over rules for tens of millions of ballots is clearly an issue of vast political significance and (in the words of Chief Justice John Roberts in the recent Learning Resources tariff case) a "highly consequential power."

When the executive claims Congress has delegated it such a vast power, the major questions doctrine requires proof that the delegation is clearly stated in the relevant statute. Here, there is nothing like that.

Trump has also asked the Supreme Court to stay the district court ruling, and that court will have the final say, if it wants it. Hopefully, the justices will recognize that the district court and the First Circuit got this issue right.

While recent events have led me and some other scholars (e.g. - prominent election law specialist Rick Hasen) to take a more favorable view of election-law federalism, there are still plausible arguments for increasing federal control over some aspects of election administration. But any such increase must be properly enacted by Congress, not unilaterally imposed by the executive. There are good reasons for the Constitution's rejection of the idea that any one person should have sweeping power to alter electoral rules - especially so close to the date of a major federal election.

The post First Circuit Refuses to Stay District Court Injunction Against Trump's Executive Order on Mail-In Voting appeared first on Reason Magazine.

Americans Have Learned Virtually No Lessons From 9/11

2026-09-11T19:13:21Z

It's impossible, and probably psychologically unwise, to try to recapture the nightmare feelings unleashed by the September 11 attacks 25 years ago—that deeply sickening moment when the second plane hit the South Tower of the World Trade Center at 9:03 a.m., making it clear that a terrorist attack, rather than a freak accident, was underway. The Pentagon was hit just 34 minutes later. The South Tower collapsed, and then Flight 93 smashed into the ground in rural Pennsylvania, rather than Washington, D.C., thanks to a heroic passenger revolt.

It was less than two hours after initially being struck that the World Trade Center's North Tower collapsed, taking with it not just thousands of lives but the collective breath of a country that had presided over what Time's Henry Luce had dubbed "the American Century" back in 1941, urging the United States to act unapologetically like the global hegemon it was about to become. In real time, that morning took forever to unfold, and it is stunning to think about how compressed the timeline was.

Thinking about 9/11 now, a quarter of a century later, is to feel a kick to the solar plexus, an unmanageable and volatile mix of disbelief, anger, horror, and overwhelming sadness at the spectacle of people jumping to certain death, of survivors staggering out from impossible clouds of ash, of reading "portraits of grief"—brief, evocative, and utterly devastating obituaries of the nearly 3,000 killed that day—for months to come. Of outrage at the tin-eared dismissal on September 12 of "the little Eichmanns inhabiting the sterile sanctuary of the twin towers" by an academic who would later be unmasked as a liar about Native American heritage. To remember that day is to recall things mostly, and thankfully, forgotten.

If grief flows and ebbs over years, even decades, the political response to 9/11 was nearly instantaneous and unidirectional, always pointing to more power and money for the state, at whatever level deemed necessary. (For example, in the tsunami of funding tied to homeland security, tiny Colchester, Vermont, netted a search-and-rescue vehicle that could bore through concrete.) In a few short weeks, Congress overwhelmingly passed the USA PATRIOT Act, a ludicrous acronym for "the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." Only one senator, Russ Feingold (D–Wis.), voted against it, and just 66 House members (including just three Republicans and independent Bernie Sanders of Vermont) said no.

Then-Defense Secretary Donald Rumsfeld (we forget his calculated cynicism, aw-shucks wordplay about "known unknowns," and absolute failure at our own peril) declared that what would come to be known as the "global war on terror" (GWOT) was a variation on the Cold War that had ended only a decade earlier, in 1991, with a seemingly decisive victory for the United States. GWOT, pronounced Rumsfeld back in the day when the press eagerly ate up every morsel he offered like docile goats in a petting zoo,"undoubtedly will prove to be a lot more like a cold war than a hot war. If you think about it…the Cold War took 50 years, plus or minus….It involved continuous pressure….It involved the willingness of populations in many countries to invest in it and to sustain it."

When then-Attorney General John Ashcroft, a comically failed and prudish figure who lost a Senate race to a dead man and whose staff rented curtains to cover up nude statues at the Department of Justice, attacked "those who scare peace-loving people with phantoms of lost liberty," he could at least say he was channeling the will of the people. In the aftermath of the 9/11 attacks, Americans overwhelmingly supported trading in all sorts of civil liberties and freedoms for safety. In 2002, for instance, polls routinely showed nearly 8 in 10 Americans favoring giving up civil liberties in the name of greater safety and 7 in 10 calling for a national ID card. (In 2005, Congress would pass the REAL ID Act, which would take 20 years to be implemented.)

As Ohio State political scientist John Mueller reminded people in the years following the 9/11 attacks, catastrophic events and social panics routinely give rise to laws and policies that long outlive the specific moments that inspire them. He noted that the Red Scare of the postwar era gave rise to loyalty oaths, incursions on civil liberties, and other policies that persisted for years or even decades after anyone seriously feared communist subversion. After 9/11, he wrote, the issue wasn't simply about government surveillance, but spending patterns on things like the new Department of Homeland Security that could be locked in. Osama bin Laden had declared in 2004 that his goal was "bleeding America to the point of bankruptcy" by spending large amounts on all manner of activities and services dubiously related to safety.

In 2011's Terror, Security, and Money: Balancing the Risks, Benefits, and Costs of Homeland Security, Mueller and Mark G. Stewart argued persuasively that quick and relatively inexpensive policies such as hardening cockpit doors and training crews effectively ended the threat of another 9/11-style attack in which a commercial airliner is used as a missile; as important, the attack was an outlier event that almost certainly could not be repeated. Overreaction in both domestic and foreign policy, runs their argument, is a far bigger threat to the American way of life than anything terrorists can do. "Your chance of dying in a bathtub is about one in a million, and from terrorism is about one in 3.5 million," Mueller told me in 2011, and it's far from clear that we were any safer despite large outlays (see interview below).

But if eternal funding for, say, the Transportation Security Administration (TSA) seems locked in despite no clear evidence of its efficacy, it's also true that both politicians and voters remain happy to keep on believing that trading freedom for safety is a good idea. A recent Reuters/Ipsos poll found that, compared to 2013, more Americans fear domestic terrorism (33 percent) than foreign terrorism (20 percent). When it comes to wars fought in the name of ending or suppressing terrorism, just 21 percent agree Afghanistan and Iraq were worth it, and just 25 percent think that Iran is worth it. Yet two-thirds of respondents agree that "airport security disruptions are worth it because they make flying safer" and prefer government agencies to private providers.

The one bright spot is that 65 percent of Americans believe that the government should not be allowed "to monitor electronic communications of citizens without a warrant," including majorities of Democrats (77 percent), independents (63 percent), and Republicans (55 percent). Given that the law permitting such practices, Section 702 of the Foreign Intelligence Surveillance Act (FISA), lapsed in June without reauthorization, that counts as progress.

But 25 years on from the worst terrorist act in U.S. history, it's not enough.

The post Americans Have Learned Virtually No Lessons From 9/11 appeared first on Reason Magazine.

The GOP Midterm Convention Is the Campiest Apocalypse I've Ever Seen

2026-09-10T21:04:04Z

DALLAS—A couple of things are clear from the outset of the first-ever GOP midterm convention. For one: If Republicans lose in November, the world as we know it will end. For two: The party plans to go down looking fabulous.

Not the Republican Party—what, with members' standard blue blazers and red power ties?—but the party in downtown Dallas, here at the American Airlines Center, where many of President Donald Trump's MAGA faithfuls convened this week in anticipation of the midterm elections. There were sparkles and sequins and Trump jerseys and at least one man dressed as the U.S.–Mexico border wall, all while attendees mulled what would happen if Democrats reclaimed a majority in the U.S. House of Representatives, which they are largely expected to do.

I was initiated appropriately. Upon first arriving, I began swimming upstream against a crowd heading toward the main event, many clad in their finest reds, as I ricocheted between them with my suitcase. It felt a bit reminiscent of the stampede scene from The Lion King, only in this version they were wearing cowboy hats. We are in Texas.

MAGA merch tables greet people in the outdoor pavilion inside the perimeter. Offerings include a shirt celebrating Trump's first term ("IT AIN'T A MISTAKE SNOWFLAKE"), another celebrating his current term ("SUCK IT UP BUTTERCUP"), and a hat hoping for a third ("TRUMP 2028"). Nearby, The Daily Wire hosts a party called the BaRNC—bar and Republican National Committee, we love a portmanteau—where drinks are flowing. (The outlet advises people to "enjoy conservatively.") Trivia plays on the TV: "By early 2026," one question reads, "how many illegal immigrants charged with or convicted of crimes had been deported under President Trump?" Put down the margarita.

Onstage at the main event, the message oscillates between hopeful (if we are talking about Trump) and utterly dire (if we are not). To some degree, that's typical for any sort of gathering like this. But it's on steroids here. "Your vote will decide whether our country stumbles at the starting gate of the next 250 years," the president told the sequined, cowboy-hatted crowd, "or surges forward and never, ever looks back."

Why this convention was planned has been a matter of debate. That's mostly because this isn't actually a convention. Those, in theory, exist to formally nominate candidates. But there are no candidates to nominate here. There are people who came as "delegates," but they aren't doing any delegating, because there is no delegating to do.

You could make the argument that this is about Ken Paxton, the Republican Senate candidate from Texas, whose scandal-ridden tenure as attorney general has him facing a weirdly close race against Democrat James Talarico (known in these walls as James Talafreako). "He may not dress right. He may not talk exactly perfectly, and he may not be the best-looking guy I've ever seen," Trump said of Paxton. "But you know what he is? He's the greatest attorney general in America, and he deserves to be your next senator." The inverse relationship between Paxton's alleged homeliness and his fitness for office was a theme across the president's nearly two-hour speech.

You could also make the argument that this was mostly about Trump, who, it goes without saying, relishes an opportunity—any opportunity—to be camp under the spotlight. (He entered the stage to Lee Greenwood singing "God Bless the USA." How else?)

And then there was that closing act: the attempt to attract midterm votes for Republicans broadly by offering every American adult a $5,000 check. It was a fitting end to the evening, in which speakers foretold the apocalypse that would come if Democrats were victorious in the midterms. The result: socialism. The solution: also socialism. "If the Republicans win," Trump said, "you win with us, and you get $5,000."

The crowd went wild. Except one man dressed in a red T-shirt, standing off to my left. "THAT CAUSES INFLATION," he shouted. "DON'T DO IT!"

The post The GOP Midterm Convention Is the Campiest Apocalypse I've Ever Seen appeared first on Reason Magazine.

Trump's Bribe, AI Doom Psyop, and the Rapture

2026-09-10T20:25:50Z

Robby Soave and Christian Britschgi kick things off with President Donald Trump's way-too-long Republican midterm convention speech before debating whether stay-at-home moms should get paid to stay home. Then, Robby picks a fight with car insurance; the guys ask whether AI is going to kill us all, and they reflect on where they were on September 11, 2001.

They end the show by getting excited about the remake of The Legend of Zelda: Ocarina of Time and revisit Jennifer Lawrence's character in No Hard Feelings. Finally, they close with a Rapture-themed detour through The Leftovers.

0:00—Trump's speech could have been an email.

11:15—Should moms be paid to stay at home?

25:43—Robby starts beef with car insurance.

33:28—Is AI going to kill us all?

54:32—Where were Robby and Christian on 9/11?

1:08:51—The Legend of Zelda: Ocarina of Time remake

1:16:55—No Hard Feelings

1:22:18—The Rapture and The Leftovers

The post Trump's Bribe, AI Doom Psyop, and the Rapture appeared first on Reason Magazine.

A 50% Tariff on Pencil Parts? Welcome to the U.S.-Canada Trade War.

2026-09-10T20:08:55Z

In his 1958 essay "I, Pencil," Leonard Read used the ordinary pencil to illustrate the extraordinary coordination of a free economy. Cedar, graphite, clay, lacquer, metal, rubber, machinery, transportation, and innumerable varieties of human knowledge come together to produce an object that sells for pennies. No single person directs the process.

The United States and Canada are now demonstrating the opposite lesson. Call it "I, Pencil: Trade War Edition." Canada's new retaliatory tariffs, which took effect this week, include a 50 percent levy on a customs category expressly covering "ferrules for use in the manufacture of pencils." A ferrule, for anyone fortunate enough not to speak fluent customs code, is the tiny metal collar joining the eraser to the pencil. Government officials do not know how to make a pencil either. But they do know how to make its parts more expensive.

Canada's ordinary most-favored-nation tariff on aluminum pencil ferrules is zero. A ferrule imported from almost anywhere outside the United States can continue to enter Canada duty-free. Meanwhile, a qualifying finished pencil imported from the United States can also enter duty-free under the U.S.-Mexico-Canada Agreement.

Thus, a Canadian manufacturer may pay a 50 percent tariff to import the American component while its competitor pays no tariff to import the completed American pencil. The policy meant to answer American protectionism may end up protecting American finished goods from Canadian manufacturers.

The ferrule did not become a strategic national resource overnight. Canada did not discover an endangered domestic pencil-ferrule industry. The ferrule was swept into the conflict because of the simple fact that it is made of aluminum. Other items caught in that customs classification include candle cups, fish-egg incubators, climbing equipment, migratory-bird identification bands, pigeon leg bands, and certain pharmaceutical-manufacturing equipment.

This particular absurdity began in Washington. As Reason has explained, President Donald Trump became the first president to impose tariffs under Section 338 of the Tariff Act of 1930—the Smoot-Hawley Tariff Act, perhaps the most notorious trade law in American history.

Section 338 spent nearly a century gathering statutory dust before the administration pulled it from the attic to impose 50 percent tariffs on approximately $20 billion in Canadian imports. George Mason University law professor Ilya Somin has argued that this "long-defunct part" of Smoot-Hawley was superseded by later trade legislation and that its revival is illegal.

Canada responded as countries on the receiving end of tariffs traditionally do: It imposed tariffs of its own. Ottawa says its countermeasures match Washington's tariffs dollar for dollar and rate for rate. That is how two of the world's wealthiest, friendliest, and most integrated economies arrived basically at a 50 percent tax on the nationality of the ring around a pencil eraser.

Politicians describe this as retaliation, as if their government were striking a foreign adversary. But the first person to pay Canada's tariff is the Canadian importer. The burden then falls somewhere among Canadian manufacturers, retailers, workers, investors, and consumers.

American tariffs hurt Americans. Canadian tariffs hurt Canadians. Combining the two does not cancel the damage. It compounds it.

Reason contributor J.D. Tuccille recently argued that Canada should answer American protectionism with unilateral free trade rather than join the United States in taxing its own citizens. The pencil ferrule demonstrates why.

Suppose a Canadian pencil manufacturer buys ferrules from an American supplier. It can pay the tariff, force the supplier to absorb some of it, switch to a producer elsewhere, redesign the pencil, or import the finished product. None of those choices manufactures a ferrule in Canada or makes the Canadian factory more productive.

At best, the tariff diverts an order from an American supplier to a supplier in another country. At worst, it disadvantages Canadian manufacturing against foreign companies selling completed pencils. Officials may later cite declining imports from the United States as proof that the tariff "worked." But changing the direction from which a tiny aluminum tube crosses the border is not productive capacity. It is a supply chain reorganized around political punishment rather than price, quality, and reliability.

The duty on a single ferrule may amount to only a fraction of a cent. That is precisely why it is instructive. A modern economy contains millions of modest inputs. Add tariffs, customs compliance, supplier qualification, extra inventory, delays, and uncertainty across thousands of categories, and the fractions become meaningful sums.

Read's pencil was an autobiography of cooperation. The tariff pencil is an autopsy of protectionism. The ferrule may be tiny, but the conceit behind taxing it is enormous: that governments can create prosperity by punishing exchange. They cannot. And no matter how many erasers officials attach to their tariff schedules, they cannot rub out the costs.

The post A 50% Tariff on Pencil Parts? Welcome to the U.S.-Canada Trade War. appeared first on Reason Magazine.